The Marin Lawyer September 2020 by Marin County Bar Association

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

THE MARIN LAWYER September 2020 Editor Robert Rosborough Guest Editors Emily Charley, Charles Dresow, Susan Feder, Ahtossa Fullerton, Chelsea Heaney Creative Director Kiersten Ross

2020 Officers President Susan Feder President Elect J. Timothy Nardell Secretary Scott Buell Treasurer Robert Rosborough Past President Charles Dresow 5 Year Past President Matthew White Board of Directors 2020 Directors Marie Barnes Gregory Brockbank Chelsea Heaney Andres Perez Nestor Schnasse 2021 Directors Habib Bentaleb Michael Chaput Ahtossa Fullerton Sarah Léger G. Kelley Reid 2022 Directors Emily Charley Kristine Cirby Christopher Locke Ann Munene Karthik Raju Executive Director Mee Mee Wong

Communications Director Kiersten Ross Membership & Events Administrator Denise Belli The Marin Lawyer is published by The Marin County Bar Association 101 Lucas Valley Road, Suite 326 San Rafael, CA 94903 415-499-1314 info@marinbar.org www.MarinBar.org © 2020. All Rights Reserved.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

CONTENTS P6

Restoring Justice to Criminal Justice ROBERT ROSBOROUGH

P12

Presidentâ&#x20AC;&#x2122;s Message: Let All Our Voices Be Heard SUSAN FEDER

P14

The Status of Bail Reform in California: Proposition 25 or the California Supreme Court ASSEMBLYMEMBER ROB BONTA

P17

Reforming Jury Selection: Don't Stop at the End EMILY CHARLEY

P20

Something Else Has to Give: Time to Restore the Speedy Trial Provisions of Penal Code Section 1382 MORGAN H. DALY

P23

Ending Mass Incarceration in the Face of COVID-19: Solutions Are Needed More Than Evers CHARLES DRESOW

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

CONTENTS P28

Interrupting the School-to-Prison Pipeline in Marin County Schools: A Call to Remove School Resource Officers ZIANAH GRIFFIN

P39

Demystifying Restorative Justice LORI FRUGOLI

P45

The Trouble with Eyewitness Testimony: Itâ&#x20AC;&#x2122;s Worse than You Think KARTHIK RAJU

P49

Webinar Recap: SCOTUS Update with Professor Rory Little AHTOSSA FULLERTON

P53

How Many Jurors Does It Take to Overrule a Precedent? Ramos v. Louisiana and Stare Decisis ANDREW J. CHAN & ALEX D.W. PROMM

P57

Nonprofit Profile: IANGEL: Transformative Gender Justice CALI CRUM

P60

The Brockbank Political Report: Marin's Local Races, The State Ballot Measures, Control of Congress, and Biden v. Trump GREG BROCKBANK

P72

New Members

Upcoming Events

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

EDITOR’S FAIRINTRODUCTION HOUSING Restoring Justice to Criminal Justice ROBERT ROSBOROUGH

We chose our criminal justice theme for this

awaits

issue back in December. Little did we know

the gov-

just how prominently many of the issues ad-

ernor’s

dressed in this month’s articles would figure

signature

in today’s headlines, not to mention the politi-

or veto.

cal landscape. So many criminal justice issues are part of our daily news that one of the

Emily argues that

most significant reforms to the criminal justice system in ages, one we will be voting on in

this reform is a

November, hardly seems to be on the radar: bail reform. Until recently, the elimination of

good start but it addresses only the end of the jury

cash bail has been at the forefront of the public discussion of criminal justice reform. As-

selection process and reform should not stop there. She suggests several ways to enable

sembly Member Rob Bonta, one of the au-

greater diversity in the jury pool, one of which

thors of California’s original bail reform bill

received a boost from the Legislature in a bill

now on hold because of the upcoming referendum, writes about why he thinks we ur-

also sitting on the governor’s desk: using lists of all tax filers as the source of jurors.

gently need to eliminate cash bail. As with most problems of the criminal justice system,

Jury trials are one of the parts of the criminal

the deleterious effects fall disproportionately on people of color and the question of racial bias pervades most of the articles in this issue

even when it is not being discussed.

justice system most affected by the COVID19 pandemic. Most of us are aware of the innumerable logistical challenges our courts are facing. Perhaps the greatest challenge is conducting jury trials safely. Our courtrooms

Another part of the criminal justice system many find ripe for reform is jury selection.

were not designed for social distancing. Having a jury trial that is fair to the defendant and

MCBA board member Emily Charley writes about racial bias in jury selection. California’s

also protects all of the participants is difficult. Judge Simmons is presiding over the first jury

AB 3070 would bring a significant change to voir dire by allowing objections to perempto-

trial in Marin—which began just last week— since the pandemic began. It is not easy. And

ry challenges based on suspicion of racial or other biases. It passed the Legislature and

the court does not have the capacity for many trials. The inability to have jury trials has led

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

the court to suspend California’s speedy trial

Another systemic change that reduces the

rights. Morgan Daly argues that it is time to stop the suspension. In her view, the result

flow of people—particularly our youth—to prison is the use of restorative justice instead

will not be the dismissal of case after case but more equitable bargaining power in plea ne-

of the traditional criminal process. District Attorney Lori Frugoli demystifies restorative

gotiations.

justice and surveys the surprising number of successful programs using it in Marin. The

Turning to the prison end of the justice system, last year’s MCBA President, Charlie Dresow, reviews two books examining mass

incarceration in this country and what we might do to undo it and why. This issue has gained urgency with the pandemic, which is laying bare the overcrowding and frequently

statistics for programs like the one Cindy Ayala runs as part of the probation department are remarkable—an extremely low recidivism rate and nearly perfect victim satisfaction. You’ll gain insight into how and why restorative justice works.

deplorable conditions of our prisons. Charlie

I have written in the Marin Lawyer before

shows us the horrifyingly quick progress of

about the integrative law movement, which

COVID-19 into San Quentin, which is just one

seeks to break law out of its legal box so that

result of our country’s mass incarceration,

it is informed by the knowledge and wisdom

which counts more prisoners than India and

of other professions, so that law better serves

China combined. (I’ll leave it to you to figure out how much higher their populations are

us based on how people actually resolve conflict and make decisions, so that law is based

than ours. Hint: It’s approaching an order of

on how people and society actually work. One

magnitude.)

piece of this movement seeks to reform the

At the opposite end of the justice system, one of many controversies relates to school resource officers. Real police assigned to schools, they bring the criminal justice system

directly into our educational system. While some view them as necessary for discipline, many others see them as criminalizing ordinary student misbehavior, making learning more difficult and creating a school-to-prison pipeline. Zianah Griffin discusses the role of school resource officers here in Marin and argues forcefully that they should be eliminated. Doing so would result in fewer students going to prison and fewer lives derailed.

criminal justice system in light of rapidly developing psychological, sociological, and other scientific knowledge (think cognitive neuroscience, for example). The use of restorative justice is one well-known example. Through an integrative law lens, MCBA board member Karthik Raju takes a look at a critical piece of the criminal justice system: eyewitness identification. From police procedure to courtroom procedure, our system is seriously flawed when it comes to eyewitness identification. We already have knowledge to improve how we collect and treat this evidence

but only a few places have made changes. We

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

need to reform our evidence-based justice

board member) Greg Brockbank pens his fi-

system to reflect the actual evidence we have of how it’s not working.

nal column before the presidential election. While I always like to read what’s happening

Criminal justice was of course an issue before

with local candidates, I found Greg’s review of the most contested U.S. Senate races to be

the U.S. Supreme Court this past term, even with the lowest number of decisions in decades. The cases included Ramos v. Louisiana, which held that the Constitution requires unanimous criminal jury verdicts in state

particularly interesting with the election just two months away. You can also find his excellent summary of the many ballot propositions we’ll be voting on.

courts. The case drew widespread attention

I would like to remind our readers that our

not because of the prevalence of non-

articles reflect the views of their authors.

unanimous verdicts (only two states allowed

MCBA is not endorsing any views presented

them) but because it entailed overturning a

in the Marin Lawyer and does not endorse po-

precedent. Andrew Chan and Alex Promm

litical candidates. When we choose a theme

review the decision’s five opinions for what

for an issue, we seek out and encourage sub-

they tell us about the justices’ views on stare

missions from a wide variety of sources. I am

decisis, a subject of keen interest to many

constantly encouraging people to write for

who worry that landmark decisions may be

the Marin Lawyer and we welcome submis-

overturned.

sions regardless of viewpoint. Anyone should feel free to contact me or any board member

Be sure to also check out our regular features. The Ramos decision is one of the cases fanfavorite Professor Rory Little discussed in his annual Supreme Court roundup. If you missed

about writing for the Marin Lawyer. We’ll be back in December with an issue about new legal developments this year.

it, check out MCBA board member Ahtossa Fullerton’s recap. (Professor Little will be returning this November for the CLE Fair.) Le-

gal intern Cali Crum profiles the wonderful non-profit IANGEL. It has a global network connecting attorneys to pro bono work that advances women’s human rights. One of its programs trains attorneys in the use of California’s vacatur law to clear the criminal

View this article at Marinbar.org Rob Rosborough is Of Counsel to Monty White LLP. He mediates disputes where an ongoing relationship is at stake, particularly adult-family conflict such as disagreement over caring for an aging parent, and HOA disputes. He also maintains an estate planning and HOA practice. Rob teaches at USF’s Fromm Institute (conflict resolution and history of science) and helps lawyers cope with the practice of law by teaching them meditation skills as a certified iRest® meditation teacher. EMAIL | WEBSITE

records of survivors of human trafficking. Don’t miss MCBA President Susan Feder’s first-ever video president’s message. Last but not least, our political columnist (and MCBA THE MARIN LAWYER An Official Publication of the Marin County Bar Association

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

PRESIDENT’S MESSAGE FAIR HOUSING Let All Our Voices Be Heard SUSAN FEDER

Last month, our nation celebrated the 100th

speak to you directly by way of the video on

anniversary of women’s suffrage. The 19th

the following page. In my message, I refer to a

Amendment boldly proclaims that, “The right

letter writing campaign to “get out the vote.”

of citizens of the United States to vote shall

Here is the address to get you started should

not be denied or abridged by the United

you choose to join me in the “Vote Forward”

States or by any state on account of sex.” The road to this amendment was long and diffi-

campaign: m47politics@gmail.com.

cult. The organized movement began in 1848 at the first Women’s Rights Convention in Seneca Falls, New York. While the faces of the many courageous women who fought for its passage were diverse, the new law did not benefit all women. Black women and other women of color had to wait another 45 years

I hope you enjoy the excellent articles in this September’s digital magazine on criminal justice, and I encourage you to consider submitting your own articles for future issues. Hope to see you soon at an upcoming program or virtual social gathering. In the meantime, be well, stay engaged and stay connect-

until the passage of the Voting Rights Act of

ed!

1965 to be able to exercise their right to vote.

Susan

Today, only two months before the most important election of our time, our cherished right to vote is in danger. The global pandemic has created fear and anxiety about traditional “in-person” voting at the polls. Equally worrisome, the long-established and effective alternative of voting by mail is under siege, from denigration by the president (who nonetheless votes by mail), to politically motivated budget cuts, to ineffective leadership in the postal service.

View this article at Marinbar.org Susan has been a full-time mediator since 2010, and is on the panel of Judicate West statewide. She uses insight and intuition to bring a fresh and creative approach to reaching settlement. Before becoming a mediator, Susan was a business litigator with a national law firm and practiced in house as litigation counsel for Bank of America. Susan’s mediation practice covers a wide variety of cases, including tort, employment, real estate matters and commercial litigation. When negotiating a settlement, Susan focuses on uncovering the issues fueling the dispute, and redirecting the parties towards resolution and finality. Susan is the MCBA President for 2020. EMAIL | WEBSITE

In this month’s president’s message, I address the importance of ensuring that all voices be heard in the upcoming election. What better

way to communicate this message than to THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Join the Vote Forward campaign: m47politics@gmail.com Resources www.democraticgovernors.org www.moveon.org www.actblue.org www.turnoutpac.org www.action.aclu.org www.newfloridamajority.org (Florida) www.downhomenc.org (North Carolina) www.luchaaz.org (Arizona)

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

BAILHOUSING REFORM FAIR The Status of Bail Reform in California: Proposition 25 or the California Supreme Court ASSEMBLYMEMBER ROB BONTA

An objective evaluation of our criminal legal

Novemberâ&#x20AC;&#x2122;s ballot, asking voters to reverse

system reveals fundamental injustices. One of them is money bail. Money bail inherently

SB 10. The Secretary of Stateâ&#x20AC;&#x2122;s certification of the referendum meant the law did not go into

criminalizes poverty and is one of the many failed policies that need to be fixed. The jail

effect, pending the outcome of the vote.

door should not swing open and closed based on how much money you have. In California, I co-authored and helped pass the Money Bail Reform Act (SB 10), a landmark bill to end money bail in our state. Unfortunately, after SB 10 was signed into law in 2018, a national coalition of bail organizations launched a referendum campaign, which collected enough signatures to force a statewide vote on this

Money bail perpetuates deep racial and socioeconomic inequality in California. In the U.S., about 60 percent of people in jail have not been convicted of the offense for which they are being held, but are awaiting court action on a charge.1 According to one longitudinal study, the largest urban counties in California disproportionately relied on pretrial detention to a much greater extent than did large urban counties elsewhere in the United

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

States.2 One possible explanation for the sig-

ment and supervision system in every county.

nificant unconvicted jail population is the median county bail schedule in California, which

During the first months of the COVID-19

is “five times greater than in the rest of the country ($50,000 in California; less than

took bold action to reform pretrial detention.

$10,000 elsewhere).”3 Furthermore, 59 percent of felony arrestees in large urban counties in California are detained pretrial compared with 32 percent in the rest of the U.S.4 Among those detained pretrial, Black and Latinx Californians are overrepresented. For example, Black Californians comprise only 6 percent of the state’s population, but represent 16 percent of all state arrests.5 In addition to the disproportionate arrest rates in California, on average, Black and Latinx men have higher bail amounts than White men: 35% for Black men and 19% for Latinx men.6

shelter-in-place order, the Judicial Council The Council adopted Emergency Rule Number 4 with the goal of reducing the incoming jail population to protect Californians from the heightened risk of the virus in congregate settings like detention facilities. The emer-

gency rule temporarily eliminated money bail in all criminal courts for misdemeanor and low-level felonies.9 The policy achieved its desired result of reducing jail crowding.10 Moreover, the emergency rule helped demonstrate why bail reform is still urgently needed: Pretrial detention is largely based on the size of a person’s wallet and not necessarily their risk to public safety. While it is too

The foundation of the Money Bail Reform Act was rooted in restoring equity in the pretrial

early to draw any sweeping conclusions about the impact of the emergency rule on crime

justice system and strengthening public safe-

rates, it is clear that the decrease in pretrial

ty. Our efforts to pass SB 10 were bolstered

detention directly benefited those for whom

when the California Judicial Council pub-

paying bail would have been financially diffi-

lished the results of its working group that had been convened to study the state’s mon-

cult.

ey bail system. The judges found the current system to be “unsafe and unfair.”7 According

cussed,11 a California Appellate court has de-

to the report, money bail “unnecessarily compromises victim and public safety because it bases a person’s liberty on financial resources rather than the likelihood of future criminal behavior and exacerbates socioeconomic disparities and racial bias.”8 The Judicial Council report made formal recommendations, including replacing the current money bail sys-

tem with a robust risk-based, pretrial assess-

As earlier Marin Lawyer articles have dis-

clared money bail unconstitutional but the case is currently on appeal and awaiting a final decision from the California Supreme Court. (In re Kenneth Humphrey, 233 Cal. Rptr. 3d 129, 417 P.3d 769 (Cal. 2018).) In In Re Humphrey, Mr. Humphrey was accused of stealing five dollars and a bottle of cologne. For these alleged offenses, his bail was set at $350,000 dollars—an amount he could not possibly afford, which meant he would be

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

kept in county jail. Mr. Humphrey appealed

tion.” (United States v. Salerno, 481 U.S. 739,

and the Court held that trial court judges must consider a defendant’s ability to pay as

755 (1987).) As long as money bail is an option for California courts, the criminal justice

well as non-monetary options for release when determining a bail amount or setting

system will be a symbol of injustice and inequality.

conditions of release. (Id. at p. 45.) While a landmark ruling, the Court’s rules are broad

and lack the nuance of statewide legislation, which the Court referred to as “desperately

Todd D. Minton and Zhen Zeng, Jail Inmates at Midyear 2014, Bureau of Justice Statistics Bulletin, June 2015 NCJ 248629 at p. 4. 2 Sonya Tafoya, Pretrial Detention and Jail Capacity in California,

needed.” (Id. at p. 46.) And, of course, the California Supreme Court could decide to reverse

Public Policy Institute of California, July 2015, at pp. 3-4. 3 Id. at p. 4.

the appellate court’s holding and leave the state back at square one on money bail re-

form. If Californians pass Proposition 25, upholding the Money Bail Reform Act, it will permanently end the predatory and unjust system of money bail in California and moot In Re Ken-

neth Humphries. Moreover, Proposition 25 would make California the first state in the nation to require publicly-tracked data on race and racial disparities in pre-trial decision

Id. at p. 4, Figure 3. The population figure comes from 2018 Census Bureau esti-

mates and the arrests figure comes from the California Department of Justice’s Open Justice Initiative data for 2019, available here. 6 Pretrial Justice Institute, Race & Bail in America, 2015. 7

Pretrial Detention Reform Workgroup, Pretrial Detention Reform: Recommendations to the Chief Justice, October 2017, at p. 51. 8 9

Id. at p. 57. Emergency Rules 1-11, April 6, 2020, Rule 4(c), at pp. 17-18.

Robert Salonga, California Justices Rescind Emergency Zero-Bail Order, San Jose Mercury News, June 10, 2020, accessed August 10, 2020. 11 See, for example, Morgan Daly, Cash Bail: There’s Still a Role for it in a Reformed Bail System, Marin Lawyer, September 2018.

View this article at Marinbar.org

-making. It will also reduce times between arrest and release from an average of two days to 12 hours. This change could be the difference between keeping or losing a job, a car, a home or even a child—important pillars of

Assemblymember Rob Bonta represents the 18th Assembly District, which includes the cities of Oakland, Alameda, and San Leandro and is the Assistant Majority Leader. WEBSITE

community stability. Bail reform should not be viewed as a partisan issue. Red and blue states alike have enacted important reforms. It is an issue of justice, fairness, and safety. I believe U.S. Supreme Court Chief Justice William Rehnquist got it right when he wrote, “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited excepTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

JURY SELECTION FAIR HOUSING Reforming Jury Selection: Don't Stop at the End EMILY CHARLEY

Race, as a matter of constitutional principle,

then evaluate the reasons given and, if the ob-

cannot factor into the selection of jurors. But

jection is granted, the court could either de-

one must spend only the briefest amount of

clare a mistrial, overrule the preemptory chal-

time observing jury trials to know that this

lenge and seat the challenged juror, or pro-

colorblind ideal has not been realized yet in

vide another appropriate remedy acceptable

America. Racial bias in the jury selection process is known to seep in through peremptory

to the objecting party. Supporters of the bill argue that AB 3070 is necessary to address

challenges, the ability of each side to exclude a certain number of potential jurors without

racial bias in the criminal justice system. Tweeting his support of AB 3070, Alameda

needing to give the court any reason for the exclusion. In criminal trials, the conventional

County Public Defender Brendon Woods noted, “Blacks are excluded from jury service by

wisdom is that prosecutors will use these challenges to remove non-White jurors who

peremptory challenges at rate 2.5x higher than jurors of any other race. Those most like-

are statistically more likely to acquit, while

ly to be incarcerated by law enforcement &

defense attorneys will typically attempt to

prosecutors are most likely to be excluded

counteract by removing more White jurors.

from jury service. Thank u @AsmShirleyWeber #AB3070 can fix this.”

Assembly Bill No. 3070, introduced by Assembly Member Shirley Weber, seeks to add

But AB 3070 addresses only part of the prob-

section 231.7 to the Code of Civil Procedure to address the use of race in peremptory chal-

lem. Peremptory challenges occur at the end of the jury selection process, and AB 3070

lenges of jurors. Specifically, in its form as of August, AB 3070 would prohibit the use of a

leaves the composition of the original jury pool itself unaddressed. A “fix” that starts at

peremptory challenge to remove a prospec-

the end is not a fix. Unfortunately, people of

tive juror on the basis of race, as well as ethnicity, gender, gender identity, sexual orienta-

color do not enter into the jury selection process in proportionate levels.1 Thus, while AB

tion, national origin, or religious affiliation. The bill would allow a party to raise the issue

3070 is a good start, it presents the danger of lulling us into a false sense that the issue has

of improper bias by objecting to the use of a peremptory challenge and, upon objection,

been remedied. Fortunately, there are ways to ensure that Americans of color occupy a

would require the party exercising the challenge to state their reasons. The court must

larger percentage of the original jury pool by reducing impediments earlier in the process.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

First, the pool from which jurors are drawn

unpaid time off work will not show up, or

must be broadened. In California, jurors are selected from Department of Motor Vehicles

when they do they will seek to be excused. Under California law, beginning on the sec-

and voter registration lists. But both of these

ond day only, jurors are paid $15 a day and

lists disproportionately exclude people of col-

receive 34 cents per mile for one way of trav-

or, and both are beset with outdated infor-

el. Payment is further limited to days during

mation. Using income tax records would not

which a potential juror physically reports to

only broaden the original jury pool, but in-

the courthouse, leaving unpaid standby days,

crease the chances that a jury summons will arrive at a current address. The California leg-

which many employees would need to request off in advance. The current minimum

islature has been working on passing a bill that would require the Franchise Tax Board

wage in California is $12 an hour. Our jurors should receive at least a minimum wage for

to semiannually furnish the jury commissioner of each county with a list of state tax filers.

their essential role in our justice system. Yes, this adds expense to an already strapped

A bill passed the Legislature in the final days of the session and the governor has until Sep-

budget. But we must figure out how to accomplish this, perhaps in cooperation with

tember 30 to sign or veto it. (Cal. Const., art. IV, § 10(b)(2).)

the business community. We cannot ask our jurors to forsake a minimum wage – the bare

Second, we must financially support jurors. If

minimum we have determined as a society needed for survival – for their part in realizing

we do not, those who cannot afford to take

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

a fundamental constitutional principle.

ate further harm from an unrepresentative

Third, we must put in place mechanisms for

jury. We must review the jury selection process as a whole, not just patch it up at the end.

transparency and quality control of our jury system. Most states limit disclosure of juror

and jury information. In California, Rule

10.500 of the Rules of Court outlines public access to judicial administrative records, and does not provide access to jury or juror infor-

For references regarding various aspects of racial disparities in juries, download this one-page pdf. 2

Editor's Note: AB 3070 passed on August 30, 2020. The gover-

nor has until September 30 to sign or veto bills passed by the Legislature before September 1. (Cal. Const., art. IV, Â§ 10(b)(2).)

mation among the identified records. Con-

View this article at Marinbar.org

cerns about privacy and safety weigh in restricting this information. However, a lack of

Emily is a partner at Hanson Bridgett and is

transparency hamstrings efforts to unearth

on the board of the Marin County Bar Association. She represents a variety of private par-

glitches in the system that, intentional or un-

ties and businesses, as well as public sector

intentional, exclude whole swaths of people.

clients. She is an active litigator, handling dis-

Without being able to review our system, it is

putes in both state and federal courts, as well as in arbitra-

nearly impossible to confirm that the names

tion and mediation. Emily contributes significant time to pro

of all eligible jurors are making their way to the jury list. In a system that already disproportionately prosecutes people of color, we cannot toler-

bono legal services in her community. She sits on the board of directors of the Golden Hour Restoration Institute, a nonprofit providing ecological restoration education, and fre-

quently takes cases for the Volunteer Legal Services Program of the Bar Association of San Francisco and the Lawyersâ&#x20AC;&#x2122; Committee for Civil Rights. EMAIL | WEBSITE

Reach a high-profile targeted audience of legal professionals in Marin County. We have ad packages available for all budgets. Website Advertising Digital Magazine Program Sponsor

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

SPEEDY TRIALS FAIR HOUSING Something Else Has to Give: Time to Restore the Speedy Trial Provisions of Penal Code Section 1382 MORGAN H. DALY

Until a long-awaited murder trial began last

make California’s statutory speedy trial rights

week, there had not been a jury trial in Marin

broader than the constitutional speedy trial

County for six months.

provisions.2 The ability to demand a jury trial

On Thursday, March 12, 2020, an entire panel

within a certain time period has a greater effect than just producing the trial itself; it helps

of jurors was dismissed and sent home after one potential juror revealed that her husband had been approved for a COVID-19 test. By Monday, March 16, Marin County Superior Court was closed to all but essential matters.1 A few of us, criminal defense attorneys and prosecutors, still shuffled into court for the next few weeks to deal with arraignments on new arrests and matters where the defendants were in custody. We continued eve-

to balance the negotiating power between the parties and brings them to the table in a way that only an impending trial can do. In a game of chicken, everyone thinks they can win when the other side is still a mile away. Only when we see the true form of the opposition come into focus do the consequences of impact stir us to change our position. In the age of COVID-19 however, defendants’

rything. At the time, there was a sense that the state of emergency would last only a few

rights to a speedy trial have had to give way to public safety. On March 23, Chief Justice

weeks or months. We, meaning the criminal defense bar, were encouraged to accommo-

Tani Cantil-Sakauye issued a statewide emergency order suspending all jury trials for 60

date the courts—and we were more than happy to do so. We made do with limited contact

days and extending section 1382’s time limits by 60 days.3 On March 30, a second statewide

with our clients in jail. We advised our clients to waive time.

emergency order authorized superior courts to extend deadlines for criminal arraign-

Time is one of the few things that the defense controls in a criminal case. Penal Code section 1382 sets strict limitations on the time within which a criminal defendant must be brought to trial: 30 days for most misdemeanors and 60 days for felonies. The remedy for a violation is dismissal. These specific time limits

ments, preliminary hearings and jury trials.4 Marin County’s April 1 administrative order 20-06 implemented the extensions.5 On April 29, the Chief Justice ordered that section 1382’s trial deadlines be extended again for a total extension of 90 days beyond the original statutory time limits.6

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Our court has used this time to triage cases

ured courtrooms will inevitably be far from

and tackle the daunting task of adapting our courtrooms and procedures to this strange

ideal. The social distancing protocols that keep us safe from the virus are often at odds

new era. Nearly all court appearances are

with the safeguards needed for a fair trial.

held virtually via Zoom now. The bench (and

Masks and distance will make it difficult if not

Judge Haakenson in particular) deserves high

impossible for jurors to properly observe the

praise for helping all of us get used to virtual

demeanor of witnesses. The jurors being seat-

court appearances, even bringing back some

ed in the audience also make it impossible for

of the casual banter I didnâ&#x20AC;&#x2122;t know how much I

counsel to pay attention to a witness and the

enjoyed until it was gone.

jurors at the same time.

The courtroom in department F has been re-

Given the logistical challenges of jury selec-

constructed to accommodate a physically dis-

tion and the recent spikes in COVID-19 cases,

tanced jury trial. The bars in front of the jury box and at counsel table have been replaced

it was not surprising when the Marin County Superior Court issued a new administrative

with four desks, each encased in a plexiglass shield. The audience section has been re-

order on July 20, which, among other things, granted all of its judges the authority to ex-

purposed as a jury box, with 14 seats marked six feet apart. The reconstruction of Depart-

tend section 1382 deadlines by another 30 days.7 On August 19, the Court issued anoth-

ment M is underway.

er administrative order providing authority for yet another 30 days.8

Despite the considerable effort, the reconfig-

Source: www.marincountyda.org

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Our court is not alone in seeking to extend

make offers that account for defenses that

these deadlines. Contra Costa and Sonoma Counties have both continued to extend sec-

could be born out at trial and that appropriately weigh the threat to public safety caused

tion 1382’s deadlines. The cautiousness is warranted. San Mateo County briefly re-

by the jury trial itself. Some cases will still go to trial, but the enforcement of section 1382’s

sumed jury trials, only to issue another stay after prospective jurors were exposed to a

time limits will help ensure that only the most important cases make it there.

person with who tested positive for COVID19.9

These orders no doubt provide the court with the flexibility it needs to manage a trial docket during a pandemic. However, at the six month mark, we are beyond the triage stage of our reaction to this pandemic. It is time to stop extending the statutory speedy trial deadlines. Cases in which the court cannot

Administrative Order No. 20-04.

Burgos v. Superior Court (2012) 206 Cal.App.4th 817. Judicial Council Order, March. 23, 2020.

3 4 5 6 7 8 9

Judicial Council Order, March 30, 2020. Administrative Order No. 20-06. Judicial Council Order, April 29, 2020. Administrative Order No. 20-10. Administrative Order No. 20-11. Bob Egelko, “San Mateo County Suspends Jury Trials—Employee

Tested Positive for COVID-19,” San Francisco Chronicle, July 20, 2020, retrieved August 27, 2020.

provide the parties with a jury trial within the

View this article at Marinbar.org

prescribed period should be dismissed. While

this consequence may seem extreme to some, it is no more extraordinary than the substantial continuances defendants have already endured. It’s time for something else to give. This may be the best approximation of justice we can offer in lieu of the prompt, effective jury trials we are used to. Keep in mind that it is innocent defendants who benefit most

Morgan Daly graduated cum laude from USF School of Law in 2005. She served as a legal research attorney for the San Francisco Superior Court and then for the California Supreme Court. In 2008, she opened her private criminal defense practice in Marin County. Ms. Daly's practice areas include criminal defense at the trial and appellate levels as well as civil restraining orders and related civil litigation. She is also adjunct faculty at the University of San Francisco School of Law. WEBSITE

from speedy trials. Furthermore, the threat of a trial or dismissal will bring both parties to the table to settle cases in a way that is not happening currently. The availability of at least one courtroom as well as the disconcerting aspects of COVID-era trials will be sufficient to deter defendants from inundating the courts with time-not-waived cases in the hopes of a dismissal. And the threat of a dismissal will encourage the prosecution to THE MARIN LAWYER An Official Publication of the Marin County Bar Association

BOOK REVIEW FAIR HOUSING Ending Mass Incarceration in the Face of COVID-19: Solutions Are Needed More Than Ever CHARLES DRESOW

The COVID-19 pandemic is having many dev-

Democrats and Republicans alike have recog-

astating effects. One of the starker ones is on our custodial institutions, highlighting their

nized that something needs to be done. Indeed, our current president signed the First

dreadful overcrowding. As of 2015, 2.3 mil-

Step Act into law in 2018, which seeks to re-

lion Americans were serving time behind

form the federal criminal justice system by,

bars: 1.4 million in state prisons, 744,600 in local jails and 200,000 in federal prison. The

among other things, removing mandatory sentencing minimums for nonviolent drug of-

numbers today are no better. These figures come from Greg Berman and Julian Ad-

fenses, including applying those changes retroactively to those already sentenced. Sadly,

ler’s, Start Here: A Road Map to Reducing Mass Incarceration 19 (2018). Start Here and Rachel

the First Step Act has not been followed by a second or third step.

Elise Barkow’s Prisoners of Politics: Breaking The Cycle of Mass Incarceration (2019) both

Start Here points out that the United States,

paint a dire picture of our society but offer valuable suggestions for change. Start Here quotes President Barack Obama on the need for criminal justice reform: Surely we can agree it’s a good thing that for the first time in 40 years, the crime rate and the incarceration rate have come down to-

“locks up more of its citizens than any other country on earth. There are more people behind bars in the United States than the incarcerated populations in India and China combined.” (Start Here at 21.) This massive level of incarceration has led to dangerous prison overcrowding and set the stage for the devastation of the pandemic.

Leading public health officials warned months

gether, and use that as a starting point for Democrats and Republi-

ago that unless courts act immediately, the “epicenter of the pandemic will be jails and

cans, community leaders and law enforcement, to reform America’s

prisons.”1 As the CDC explained, correctional facilities, “present[ ] unique challenges for

criminal justice system so that it

control of COVID-19 transmission among in-

serves us all.

carcerated/detained persons, staff, and visitors.”2 “Prisons are epicenters for infectious

(Start Here at 19.)

diseases because of the higher close contact

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

in often overcrowded, poorly ventilated, and

failure of policy and planning” by prison offi-

unsanitary facilities, and the poor access to healthcare services relative to that in commu-

cials and said, “Some people made a bad mistake.”8

nity settings. Infections can be transmitted between prisoners, staff and visitors, be-

Since June 1, San Quentin’s number of con-

tween prisons through transfers and staff cross-deployment, and to and from the com-

just one month:

munity. As such, prisons and other custodial settings are an integral part of the public

firmed cases rose from zero to over 1,000 in •

48 active cases, 2 weeks later (June 14);

•

152 cases, 6 days after that (June 20);

•

338 cases, 2 days later (June 22);

•

456 cases, in another 2 days (June 24);

•

539 cases, 2 days later (June 26);

•

1106 cases, 4 days later (June 30);

•

1381 cases, 3 days later (July 3);

•

1899 cases, 11 days later (July 14).

health response to coronavirus disease.” The pandemic has borne out these dire predictions: People in prison in the U.S. are 550% more likely to contract the virus than the general population, and 300% more likely to die from it.4 The practical reality is that prisons and jails are in fact epicenters of the pandemic. These include our own San Quentin State

Prison, which experienced a massive outbreak of the virus as a result of the May 30 transfer of 121 prisoners there from the California Institution for Men (CIM).5 CIM has been an early hotbed of virus cases in the state prison system, with 509 cases and 16 deaths.6 Before the transfer, San Quentin had zero cases. The first San Quentin inmate tested positive on June 1, just two days after the transfer. Remarkably, the transferred prisoners had not been tested for two weeks up to a month before the transfer.7 During a June 19 Case Management Conference in the Plata v. Newsom COVID-19 litigation against CDCR—when the positive case count at San Quentin was nearing 150— Judge Tigar of the Northern District Federal Court called the fateful transfer a “significant

Note that the number of cases more than doubled in the four days from June 26 to June 30. Put another way, the rate of infection per 1000 in the U.S. is 7.0, in California 4.7, in CDCR 47.1 and in San Quentin 463.9.10 As of July 9, 31 prisoners had died of COVID-19 in California state prisons, including 11 at CIM and at least 7 men at San Quentin. By August 28, a total of 26 San Quentin inmates and at least one correctional Sergeant had died. The explosion of COVID-19 infections in our prisons turned the pressing need for criminal justice reform into a public health emergency. Start Here addresses a number of criminal justice reform theories and ideas. Its discussion of the racial disparities of the criminal justice system and the risks of “data” based riskassessment tools is now relevant to the

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Photo: San Quentin State Prison By Zboralski - Own work, CC BY-SA 3.0

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

headlines virtually every single day. It is a

the political spectrum supported

good starting point for understanding ways to end the crisis of mass incarceration.

that change. Conservative politicians decried the systemâ&#x20AC;&#x2122;s inability

Prisoners of Politics addresses the reality that

to address the spiking rates of crime throughout the United

our current criminal justice system fails to prevent recidivism and creates a permanent class of criminalized individuals who have no alternative but to return to a life of crime upon their release from incarceration. Barkow

makes the case that tough on crime political campaigns have led to nonsensical sentencing laws, creating harsher and longer periods of incarceration while ignoring rehabilitation. She eloquently discusses how media coverage and politicians looking for votes have shifted criminal justice policy away from professionals and into the domain of electoral politics: Thus the shift to mass incarceration is directly linked to the shift from leaving judgments to professionals to allowing the masses to

States and criticized existing laws as too lenient. Liberal politicians disliked the existing model because it worked to the disadvantage of poor people and people of color. Everyone seemed to lose faith in the idea of rehabilitation, and no one seemed to trust experts to make criminal justice decisions. The era of mass incarceration was born, unleashing forces that make its demise in any significant respect unlikely under the existing institutional architecture that created it. (Prisoners of Politics at 104.)

set policies directly. Both sides of

Start Here by Greg Berman and Julian Adler

Prisoners of Politics by Rachel Elise Barkow

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Both books are worth reading for insight and

inspiration for effective ways to reform the criminal justice system and eradicate mass incarceration. The pandemic has made taking action more urgent than ever. Mass incarceration is not feasible economically, societally, or morally. Our society has a moral obligation to create a system of criminal justice that both protects the community and avoids senseless sentencing policies that do nothing to reduce recidivism or rehabilitate citizens and have been successful mostly at creating dangerous overcrowding. 1

Amanda Klonsky, An Epicenter of the Pandemic Will Be Jails and

Prisons, if Inaction Continues, New York Times (Mar. 16, 2020). 2 Centers for Disease Control & Prevention, Interim Guidance on

website, July 8, 2020. 5

All dates are in 2020 unless otherwise indicated. California Department of Corrections and Rehabilita-

tion, Population COVID-19 Tracking, Accessed July 9, 2020. 7 Megan Cassidy and Jason Fagone, 200 Chino Inmates Transferred to San Quentin, Corcoran. Why Werenâ&#x20AC;&#x2122;t They Tested First? San Francisco Chronicle, June 8, 2020; see also, Kate Wolffe, Botched Outbreak of COVID-19 at San Quentin was Preventable (June 11, 2020); see also Plata v. Newsom, NO. CV 01-01351-JST (U.S. Dist. Ct. N.D.Ca.), Partiesâ&#x20AC;&#x2122; Joint Case Management Conference Statement (June 19, 2020). 8

Plata v. Newsom, NO. CV 01-01351-JST (U.S. Dist. Ct. N.D.Ca.) Case Management Conference Transcript at 12: lines 9-14 (June 19, 2020). 9 California Department of Corrections and Rehabilitation, Population COVID-19 Tracking, Accessed July 9, 2020. 10 Ibid.

View this article at Marinbar.org Charles Dresow is a partner at Ragghianti Freitas LLP. His practice focuses on representing those accused of crimes. EMAIL | WEBSITE

Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020, updated July 22, 2020). 3

Stuart A. Kinner, et al., Prisons and Custodial Settings Are Part of a Comprehensive Response to COVID-19, 5(4) The Lancet Public Health, E188-89 (April 1, 2020). 4 Brendan Saloner, et al., COVID-19 Cases and Deaths in Federal and State Prisons, 324(6) JAMA, 602-03, published on JAMA Network

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

SCHOOL RESOURCE OFFICERS FAIR HOUSING Interrupting the School-to-Prison Pipeline in Marin County Schools: A Call to Remove School Resource Officers ZIANAH GRIFFIN1

Since the killing of George Floyd in Minneap-

police officers assigned to one or more

olis several months ago, the subject of police violence against BIPOC (Black, Indigenous

schools. Unfortunately, their net effect is the greater criminalization of our youth, a crimi-

and people of color) citizens and more broad-

nalization that falls disproportionately on our

ly, the role of the police in our society, has

BIPOC students.

been headline news. The topic has a significant role in current political campaigns. An

One former student’s story illustrates this all

ongoing pandemic and the accompanying economic disruption, not to mention multiple long-lasting wildfires, can make questions about the role of police seem less urgent or at least less urgent here in Marin despite protests throughout the Bay Area. But the topic is no less urgent simply because there has been no local high-profile police shooting in

too well. Alyssa Martinez, a 28-year-old mom of two girls and alumna from Marin County schools who identifies as Peruvian, Black, and Chinese, recalls her experience in the public school system as one that failed her, over and over again, criminalizing her rather than supporting and cultivating her as a learner and a valued member of the community. For Alyssa,

the headlines.

“the paper trail” started in kindergarten, where her entry and consequential diversion

Much of the news has focused on such shootings, which have in turn led to broader exami-

into the school-to-prison pipeline began. Alyssa remembers her relationships with edu-

nations of police policies, training and functions. Less attention has been given to one of

cators always overshadowed by “yearly progress reports [in which teachers] keep rec-

those functions in particular, the role of police in schools. For many readers, when they were

ords of poor performance and behaviors, [that serve to] check BIPOC students and

in school, the police had no role except for the

their families off the list.” Throughout her ed-

relatively rare occasion they responded to a call. The reality in many schools today, includ-

ucational experience, she was placed in poorly managed classrooms with predominantly

ing here in Marin, is very different. School discipline is effectively now part of the criminal

BIPOC (Black, Indigenous and people of color) children with varying educational and de-

justice system. One reason for this is school resource officers (“SROs”). SROs are sworn

velopmental disabilities, who in reality just needed more human connection “due to

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

dysfunctional family structures.” As a student

Alyssa does not believe that schools need

who was struggling academically, like many, Alyssa began rebelling at home as well as in

SROs, although she understands the role of police officers in cases of sexual assault or life

school.

-threatening violence. However, “to be on campus for tardiness, skipping class, or to es-

“My acting out in school ended up being as a ‘class clown.’ I was disruptive, but not because I didn’t want to be there, but because I had no understanding or control over my feelings or emotions.” Alyssa explains that her weight

and identity issues made her an easy target to be bullied. She continued to struggle in school, but never received the right support and felt increasingly disconnected from her peers and community. “Growing up, I didn’t have a voice.” When she would arrive late to class, she felt discouraged by teachers who were more concerned about her being disruptive than why she was tardy in the first place.

She experienced a suspension in eighth grade after throwing a soda can at another student,

cort a student out of class as if they’re a criminal when they are just trying to get their education [is not necessary]. Or to have a fight break out or someone steal a backpack; it’s not that serious, [but] it’s going to look that serious. Things like that do not need police enforcement, they need somebody who is going to sit there and mediate the problem.” Alyssa wishes that her school would have invested more in restorative justice practices and community building to resolve problems, such as having students sit back to back to talk with one another after a fight, rather than resorting to calling SROs every time. After interactions with her school’s SRO in

and recalls several days in detention and mul-

9th grade, Alyssa was referred to probation,

tiple suspensions thereafter. At the end of her

which only “dug the hole deeper. Once you’re

eighth-grade year, she was prohibited from

on probation, you’re automatically checked

walking in her commencement ceremony, glumly recalling, “I didn’t get to experience

off, like yup, you’re going to end up in juvenile hall, yup you’re going to go to jail, yup you’re

that.” Alyssa started her freshman year at San Rafael High School (SRHS) and continued to

going to prison.” Over the next five years, she was closely watched by school administra-

feel “misunderstood and lost.” At SRHS, her academic and social difficulties transformed

tors, expelled from SRHS, and then pushed through two continuation schools in Marin

into encounters with local law enforcement and frequent disciplinary action by SRHS’

County, where she was further criminalized, degraded, and monitored by campus security.

School Resource Officer (SRO). What she needed was a supportive ear, affirmative

By her second continuation school, she began to feel “isolated, because no one wants you in

guidance, and educational tools. What she was met with were suspensions, citations, and

the classroom after reading your file.” Between her experiences in the three different

bookings into juvenile hall.

Marin County schools, she also regularly

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

found herself inside the walls of juvenile hall

multiple times, and arrested on two different

and various group homes, booked only on misdemeanor or petty offenses. Alyssa re-

occasions. “I was homeless at the time. I had just left the shelter and needed some extra

calls, “It was like daycare. I always got a room that had my name on it. Sometimes I would

money. I made a bad decision to go into a store and take some things. I had to do what I

get lucky and I would be placed with a cellmate; it’s better than being by yourself.” Alys-

had to do. I needed it to survive.” But, for Alyssa, this was when the chapter in her story

sa remembers times when she was restless in her cell and would “go to my window, lay back

labeled “criminal” ended, and a new chapter began.

down, go back, lay back down,” but for the most part, she was used to the routine, and recalls, “It was home to me.”

“You grow out of bad habits.” Although Alyssa was failed numerous times by systems and people, against all odds, she is healing. She is

Alyssa was never given a chance to succeed.

learning how to be happy, and building the

“All of [these] experiences affected me like

skills that she wasn’t able to cultivate while

crazy. I don’t know how to live life. I’m just

growing up. Today, she is focused on her role

learning right now. If I would have had the

as a parent and local community activist. She

proper education and self-love, I would not be

is one of the few who made it out of a broken

where I am at right now mentally, physically,

system and who is now able to speak up to fill

emotionally, or financially.” Reflecting back on that time in her life, Alyssa knows what

the void of the thousands who didn’t make it. She is fighting every day for a predominantly

would have helped her: a peer mentor or a

white county to listen to stories like hers.

mental health counselor with personal understanding of her life experiences. “I didn’t need a police officer to tell me when I was doing something wrong, what I needed was a peer counselor, somebody who looks like me, somebody that can come and talk to me. [Someone] to [try to] dig into you to get you to open up, because that’s what is really need-

Many young adults, especially BIPOC young adults, are healing from a system that recklessly and unequivocally pushes them out of school and into the criminal justice system. SROs make up only one piece of the puzzle

but they are a significant one. They often hold a struggling student’s fate in their hands, de-

ed.”

ciding if they will be healed or criminalized. The SROs in Alyssa’s story served as a cata-

Unfortunately, Alyssa’s story with the criminal justice system didn’t end there—as it com-

lyst to her over-criminalization, humiliation, disengagement from school, and unmet social

monly does not for youth involved in the juvenile justice system. When Alyssa turned 18,

-emotional needs. They made her feel unwelcome and ashamed of herself. They contribut-

she moved out of her mother’s house to try to

ed to a system that robbed her of the care

live on her own. As an adult, Alyssa was cited

that she clearly deserved.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Criminalization Begins in Schools As in the case of Alyssa Martinez, the overpolicing, criminalization, and adultification of children, especially BIPOC children, begins in the classroom of our local schools. Black and Brown children are frequently and disproportionately removed from their classrooms for minor disruptions through exclusionary disciplinary practices such as office referrals, sus-

pensions, and expulsions, despite these practices being proven ineffective in changing children’s behaviors.2 Studies show that Black children are more likely than their white peers to be suspended, expelled, or arrested for the exact same behaviors. Most research attributes this disparity to racial targeting by teachers and SROs in schools.3 Across the country, these minor infractions quickly esca-

late into irreversible harm against students of color. The case studies below illustrate how the integration of law enforcement in schools can quickly transform an innocent child into a campus criminal:4 “A four-year-old [B]lack boy in a California preschool is suspended for theft for retrieving his bag of Skittles that the principal confiscated.”

“A twelve-year-old Latina girl doodling on her desk is arrested by a NYPD police officer, handcuffed, and perp-walked out of the school for defacing public property.” “A food fight in a middle school cafeteria in Chicago results in arrests and two-day suspensions for reckless conduct of twenty-five [B]lack children, ages eleven to fifteen.” THE MARIN LAWYER An Official Publication of the Marin County Bar Association

These systems and attitudes contribute to a

To many, criminalized school discipline and

national phenomenon known as the “schoolto-prison pipeline” (STPP), a process that ini-

increased surveillance by the use of SROs makes schools reminiscent of a “prison-like

tially starts with the over-policing of Black and Brown children in their classrooms, hall-

environment,”8 which for Black and Brown students in particular, means schools are a

ways, and schoolyards, and results in the insidious problem of mass incarceration of BI-

place where they are seen as a threat rather than a student. This is evident in the data, as

POC communities.

research shows that SROs are associated with higher rates of suspensions, expulsions,

They are unfairly catapulted into the un-

breakable cycle of the STPP, which flows from referral to the office for disruptive be-

arrests, and referrals to the juvenile justice system for Black and Brown students.9

havior → suspension → expulsion → school

In response to several high-profile shootings,

failure → school drop-out → juvenile arrest

schools across the U.S. increasingly turned to

→ eventual admission into the carceral sys-

deploying SROs on their campuses for the

tem as an adult.

School Resource Officers—Who Are They? In recent years, the funneling of BIPOC children from their schools into the criminal justice system has become largely facilitated by the implementation of campus-based SROs. By definition, SROs are sworn police officers deployed by local law enforcement agencies to work within one or more schools.6 While SROs have a stated intention of mentoring students, maintaining a safe learning environment, and resolving problems with youth, their primary duty is to provide law enforcement services.7 Furthermore, SROs are not trained in providing counseling services to students. Clinicians across California are trained in substance abuse, mental health,

purpose of keeping students and staff safe from intruders. But the presence of SROs has hardly proven effective in always stopping these incidents, nor preventing deaths.10 In

the devastating Parkland shooting at Stoneman Douglas High School in 2018, the SRO on duty did nothing to prevent the death of 17 students and injury of 17 others.11 Literature analyzing the recent addition of SROs across school campuses describes them as a “short-sighted and deeply misguided” response to school safety issues.12 Similarly,

some researchers have argued that because SROs are an unproven tactic in deterring or preventing school shootings, they are an irresponsible use of funds that could be used for other school safety measures or resources.

and child development, which often requires six to eight years of schooling, whereas SROs

Although some believe that SROs and strict punishment will create a safer and more suc-

complete only five days of training related to school-aged children’s needs.

cessful academic environment, research shows this is a complete misconception.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

“Removing children from the classroom con-

of many other Marin County students. Marin

tributes to missed instructional time, decreased school engagement, and removes

County students have said,16 “I hardly ever see white kids with the officer” and “[as a per-

students from adult supervision for extended periods. Further, being suspended once in

son of color], going to school and seeing an officer makes me feel like I’m a criminal that

ninth grade doubles the dropout risk and triples the chance of juvenile involvement with-

constantly needs to be watched over.” Others report that they have seen SROs

in one year.”13

“disproportionately punish Black and brown students,” and “constantly [single] out kids of

SROs in Marin

In Marin County, there are seven SROs who operate in schools in Novato, San Rafael, Mill Valley, Larkspur, Corte Madera, and unincorporated Marin. As Marin County Supervisor Kate Sears put it, “For Black and Brown students in particular, the impact of [SROs in Marin] is neither benign nor positive.” In schools all across Marin, the statistics di-

rectly mirror Sears’ statement. Latinx children are approximately three times more likely to be suspended than white children, and Black children are approximately nine times more likely to be suspended than white children.14 Furthermore, in 2018, Latinx children accounted for 55 percent of the juvenile arrests in Marin County, despite only making up 31 percent of students in Marin County

public schools, and Black children accounted for 8 percent of the juvenile arrests in Marin County, despite only making up 1.8 percent of students in Marin County public schools.15

color [by] searching backpacks [and] getting violent [with] them for no reason.” Mahalia Morgan, a 14-year-old Black activist and student in the Novato Unified School District, says BIPOC students “are definitely over-targeted [by SROs]. Every student of color is constantly being watched. Everyone is doing the same thing, but students of color [are the ones who] get in trouble,” whereas

white students get away with the same behaviors. Tafari Maynard, a Black alum from San Rafael recalls when he was accused of stealing $5. He expressed that he was denied his rights to an attorney and due process by the SRO, and was handcuffed and hauled off to juvenile hall, which only “reaffirmed the racist stereotypes of all the students and employees that saw another [B]lack boy dragged out of the school in handcuffs.” Don Carney, Director of Youth Transforming Justice, works with most youth who are referred to probation in Marin County. He sees the refer-

vey the student experience, stories, and har-

rals and police reports, and they often come from SROs. He states that some SROs “cite a

rowing narratives of criminalization and victimization of Marin County’s children, as ex-

lot of kids and send them to probation. They are particularly fond of following kids off

emplified in Alyssa Martinez’s story and those

campus during lunch time and pulling them

More importantly, these numbers do not con-

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

over for a made-up stop and searching them.”

and I viewed the SROs on campus as adults

Others express concern for how Marin Coun-

who would only further punish and potentially criminalize my behavior.”

ty schools rely on SROs to respond to mental health crises and to address other sensitive

Many students report that the mere presence

topics, which police are not trained to do, of-

of police with weapons on their school cam-

ten resulting in children feeling more trauma-

puses makes them feel less safe, and that it is

tized. One Marin County educator notes,

“terrifying,” “intimidating,” “threatening,” and

“When a student expresses suicidal thoughts,

“extremely uncomfortable.” One student

we regularly have our SROs assess their risk

stated, “Whenever I saw an SRO, I felt nerv-

and if they feel the student is at risk, they put

ous and anxious,” and another remembers

the student in the back of a police car, often

that they felt “more afraid of cops than think-

handcuffed (per procedures), and take them

ing [that] they [would] protect me.” Don Car-

to the crisis unit. [This] prevents students

ney notes that for children of color, “seeing a

from seeking help. It punishes students and

cop on campus triggers their trauma—their

causes [additional] trauma. Criminalizing

historic trauma. When a [child] feels anxious

mental health is traumatic.” Another student

and traumatized, they have their amygdala

recalls that as a child, they were being abused,

hijacked and they overreact, and it’s criminal-

which often led them to skip school in order

ized.” Don further explains that most children

to take care of their basic needs. The school’s response was to use police officers to escort

who are involved in the juvenile justice system have experienced trauma and, as a result,

the student to school, which to that child was

develop behavioral issues. In this way, schools

“incredibly out of line and frankly, traumatic,

and SROs simultaneously punish youth for

[especially considering they] never listened to

their experiences of trauma and fail to treat

my complaints throughout childhood about being physically abused.” Other children ex-

their underlying needs, all of which make it significantly more difficult for children to fo-

press feeling uncomfortable and hesitant to talk to SROs about being sexually assaulted,

cus on their education.

and wishing there were a more traumainformed approach to help students through that experience. Jasmine Shevick, a white Terra Linda High School (TL) alumna, struggled with substance abuse issues during her time as a student at TL. Rather than being offered supportive or rehabilitative resources, Jasmine recalls, “I was met with punitive re-

sponses from administrators and teachers

Given the many stories, experiences, and statistics that bring to light the unchecked power that SROs in Marin County schools yield, we arrive at an inflection point where we have no choice but to demand change. Children are suffering and struggling in environments intended to promote growth and learning. Marin County must do better, and that starts with getting police out of schools.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Alternatives to SROs

they’re providing safety for.” Jahmeer be-

We must pursue alternatives to SROs as a

lieves that schools thrive when there is a focus on building community, which he has seen

number of other school districts are beginning to do right here in the Bay Area and across the country. The Black Organizing Project (BOP), a grassroots organization based in Oakland, CA, recently won a ten-year struggle over removing police from schools. In their movement, BOP demanded that schools

engage the community in all decision-making processes, increase the use of culturallyresponsive restorative justice practices, and invest in additional school-based behavioral health services. Community-Driven Solutions For Black Bay Area organizer and Director of BOP Jackie Byers, it is essential that any re-

placements to SROs involve a “communitydriven process.” That means fully including students, parents, teachers, support staff, and community partners in the planning and decision-making around developing strategies to increase school safety, wellbeing, and student learning throughout Marin County school districts. “In order to successfully ensure that groups who have historically been disenfran-

chised are able to succeed in the current school structure, their voices must be included and centered in the process.” Jahmeer Reynolds, a Black activist and community leader in Marin City, also believes that alternatives to SROs must start with listening. School personnel “[must] understand how youth are being impacted and really learn

how to communicate with the people that

firsthand at Bayside Martin Luther King, Jr. Academy, where he works as the Community Schools Manager. When schools “create a village within [themselves],” they are not only better able to take care of students and families in the community, but they are also more equipped to help students resolve conflict. Even for “knock-down, drag-out fights, creating a space at the school to talk it out work[s]. Community plays a part and it also brings everyone closer.” Restorative Justice A Restorative Justice (RJ) framework is grounded in a complete transformation of how schools view and respond to children who are “misbehaving.” RJ theory is based on healing individuals and communities by identifying and repairing the root of a problem through collective participation. It is a tool that can be applied and scaled to many situations and institutions. In Marin County, RJ already has been implemented in some sectors of our criminal justice system [Editor’s Note:

You can read about RJ in Marin in District Attorney Lori Frugoli’s article about it in this issue of the Marin Lawyer.], but there is still a long way to go. Restorative justice is also a growing method of addressing behavior in schools. While in Marin County schools it is scarce, Oakland’s school district has proved RJ immensely successful. In 2006, Restorative Justice for Oakland

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Youth (RJOY) implemented non-exclusionary

Neighboring San Francisco Unified School

and non-punitive, school-based RJ methods at Cole Middle School in Oakland. Using re-

District (SFUSD) implemented the “San Francisco Wellness Initiative,” a program that

storative circles and conversations to address school infractions, RJ helped students explore

does just that by providing numerous mental health services to students on-campus at no

the causes of their harmful behaviors. For incidents involving other students or teachers,

cost to students and families through “Wellness Centers.” The Wellness Program

the students learn how their actions negatively affect their community, while the com-

provides resources and education to students schoolwide, facilitates peer groups, and pro-

munity can understand and address the needs

vides students with access to individual 1:1

of the individual students. Through the first

counseling and case management services

two years of RJOY at Cole Middle School, suspension rates dropped by 87%, there were

through on-site nurses and behavioral health counselors. Additionally, they refer students

no reports of school-based violence, and overall academic performance increased. This

and their families to community-based organizations and create “safe spaces” on campus

led Oakland Unified School District to implement restorative justice as concrete policy in

where students can consult a mental health professional or de-escalate.20 Currently, 18

2010 across all schools in the district.17 Consequently, the Black/white disci-

schools in San Francisco have robust Wellness Centers, with noteworthy results.

pline gap has narrowed by 47% and the Latinx/white discipline gap18 has narrowed by 59%. School-Based Behavioral Health Services Many youth with “behavioral issues” experience varying forms of trauma, stress, and mental health disorders. Rather than crimi-

nalizing behavioral issues, schools and students can address complex root problems by employing culturally-competent resources to support students’ underlying mental health needs in a holistic and compassionate manner. As seen in a number of nearby school districts, when children’s needs are effectively addressed with the appropriate services, their wellness, health, and academic achievement improve.19

In Marin County, Wellness Centers are the exception. Tamalpais High School is one of the few schools in Marin that has a fully functioning Wellness Center, based on SFUSD’s model. In many other schools throughout the county, wellness services are lacking: an inadequate amount of mental health clinicians, behavioral health specialists, nurses, academic counselors, and other supportive resources in comparison to the volume of students. To meet the growing needs of students in Marin County schools, schools must make an intentional and complete shift away from punishing youth for their behaviors via SROs, and instead choose to expand and fully integrate trauma-informed behavioral health services

into the learning experience.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Conclusion It has become clear that our schools are failing children and families across the country. When it comes to the actual safety of children and school staff, SROs have proven to be ineffective and beg the necessary question: who really is safe under their watch? As an extension of the carceral state, SROs strengthen racist and oppressive systems, which do not

Carter, P.L., Fine, M., & Russell, S. (2014). Discipline disparities

overview. Discipline disparities series: New Research. Bloomington, IN: The Equity Project at Indiana University.; Kupchik, A. (2010). Homeroom security: School discipline in an age of fear. New York University Press. 4

Hausmann, C. (2020). The Little Book of Racial Healing: Coming to the Table for Truth-Telling, Liberation, and Transformation. The Journal of Social Encounters, 4(2), 125-129. 5 Pane D.M., Rocco T.S. (2014) The Issue / School-to-Prison Pipeline. In: Transforming the School-to-Prison Pipeline. Educational Futures (Rethinking Theory and Practice), vol 60. SensePublishers, Rotterdam. https://doi.org/10.1007/978-94-6209-449-9_1. 6 National Association of School Resource Officers.

hold back on the youngest and most vulnera-

(n.d.) Frequently asked questions. https://www.nasro.org/faq/. 7 Kim, C., Losen, D., & Hewitt, D. (2010). Criminalizing School Mis-

ble populations. We must work as a communi-

conduct. In The School-to-Prison Pipeline: Structuring Legal Reform (pp. 112-127). NYU Press. Retrieved August 3, 2020,

ty to remove SROs for the survival and wellbeing of our children. Removing SROs from Marin County schools is the first of many steps to deconstruct the harmful cycle that perpetuates lifelong racial inequity. In order to support BIPOC youth and our youth at large, we must deeply reevaluate our schools

as an institution, and understand them as entities that in large part determine the trajectory of one’s life. In this evaluation and analysis, we must ask ourselves: will we fight to ensure that our schools are places of curiosity, critical-thinking, community, and passion for all of our children, or will we allow schools to employ SROs, sending more and more youth into the unforgiving world of mass incarceration? 1

This article is a collaborative piece, including extensive and invaluable contributions from a Bay Area Social Worker and members of SURJ Marin ("Showing Up for Racial Justice"). 2 Gregory, A., Skiba, R. J., & Noguera, P. A. (2010). The Achievement Gap and the Discipline Gap: Two Sides of the Same Coin? Educational Researcher, 39(1), 59–68. https:// doi.org/10.3102/0013189X09357621; The school-to-prison pipeline: A comprehensive assessment. Springer Publishing Com-

from www.jstor.org/stable/j.ctt9qfv12.10; National Association of School Resource Officers (2012). To protect and educate: The school resource officer and the prevention of violence in schools. Retrieved from https://www.nasro.org/clientuploads/resources/ NASRO-Protect-and-Educate.pdf. 8 Advancement Project and Alliance for Educational Justice. (2018). We came to learn: A call to action for police-free schools. Advancement Project and Alliance for Educational Justice. 9

Theriot, M. T. (2009). School resource officers and the criminalization of student behavior. Journal of Criminal Justice, 37(3), 280-

287. doi:10.1016/j.jcrimjus.2009.04.008; Fisher, B.W., Hennessy, E.A. School Resource Officers and Exclusionary Discipline in U.S. High Schools: A Systematic Review and Meta-analysis. Adolescent Res Rev 1, 217–233 (2016). https://doi.org/10.1007/s40894-015 -0006-8; Justice Policy Institute. (2011). Education under arrest: The case against police in schools. Retrieved from http:// www.justicepolicy.org/uploads/justicepolicy/documents/ educationunderarrest_fullreport.pdf; Finn, J. D., & Servoss, T. J. (2014). Misbehavior, suspensions, and security measures in high school: Racial/ethnic and gender differences. Journal of Applied Research on Children: Informing Policy for Children at Risk, 5(2), 1 –50. Retrieved from http://digitalcommons.library.tmc.edu/ childrenatrisk/vol5/iss2/11.; Mallett, C. A. (2016). The school-toprison pipeline: A comprehensive assessment. Springer Publishing Company; Benjamin W. Fisher & Emily A. Hennessy). 10 3 Nance, J. P. (2016). Students, police, and the school-to-prison pipeline. Washington University Law Review, 93(4), 919+. 11

Lynch, J. (2020, May 15). Florida officer fired for his response during Parkland shooting will get his badge back. CNN. 12

Nance, J. P. (2016). Students, police, and the school-to-prison pipeline. Washington University Law Review, 93(4), 983. 13

Hausmann, C. (2020). The Little Book of Racial Healing: Coming to the Table for Truth-Telling, Liberation, and Transformation. The Journal of Social Encounters, 4(2), 125-129.

pany; Benjamin W. Fisher & Emily A. Hennessy.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

California Department of Education. (n.d.). Suspension Rates,

2018-2019. [Data set]. Data quest. http://data1.cde.ca.gov/ dataquest/.

THE MARKETPLACE

California Department of Justice. (n.d.). Arrest Rates, 2018 to 2019. [Data set]. Open Justice. https://openjustice.doj.ca.gov/ exploration/crime-statistics/arrests (accessed July 1, 2020). 16 Surveys were administered online to Marin County community members and students from June - August 2020, regarding their opinions and experiences with Marin County SROs.

Office Space, Employment Opportunities, Services and More...

The responses to the surveys were collected on Instagram and a google form survey.

VISIT THE MARKETPLACE

Jean Wing, Executive Director of Research, Assessment and Data, Oakland Unified School District, Sept. 7, 2017. 18

The racial discipline gap refers to “wide and persistent racial disparities in school discipline practices throughout the nation, including a pattern of inordinately high suspension rates among Black preschool children.” U.S. Department of Education Office for Civil Rights. (2014). Civil Rights Data Collection. Data snapshot: School discipline. Washington, DC: Author. Retrieved from http://ocrdata.ed.gov/Downloads/CRDCSchool-Discipline-Snapshot.pdf. 19

San Francisco Unified School District School Health Programs Wellness Initiative. (2015). Results/Impact. https:// sfwellness.org/our-program/results-impact/. 20 San Francisco Unified School District School Health Programs Wellness Initiative. (2015). How wellness works. https://sfwellness.org/our-program/results-impact/.

View this article at Marinbar.org Zianah Griffin was born in London, and lived all across the U.S. before moving to Marin in 2010. She graduated from HS 1327 (formerly Drake) last school year, where she was a member of SOAR (Students Organized for Anti-Racism) a student leadership group. She is now a Race, Ethnicity, and Migration Studies Major at Colorado College. She is the Co-Founder of the Instagram account BIPOC.of.Marin, which amplifies BIPOC student voices across Marin County schools and has over 5,400 followers, and she is a member of the newly-formed Racial Equity and Social Justice Committee for the Town of Fairfax.

The Marin Lawyer encourages our readers to also be our writers. If you have something you’d like to write about, get in touch with us. We also encourage our readers to be our critics. If there’s something you’d like to see (or not see) in the Marin Lawyer, let us know. If you’d like more articles on practical law firm topics, tell us. More book reviews? Let us know. All feedback is welcome. Established in 1938, MCBA has a long history in the Marin County legal community. For over 80 years, our members have benefited greatly from the professional connections and support that come along with membership. Invigorate your practice and expand your professional circle. Membership is open to attorneys, non-attorneys, and legal professionals. LEARN MORE

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

RESTORATIVE JUSTICE FAIR HOUSING Demystifying Restorative Justice LORI FRUGOLI

Restorative justice is an often misunderstood term. Fundamentally, it is a philosophy and a movement based on a set of principles that aim to mend broken relationships. When applied to implementing justice, these principles

call for bringing together all the parties impacted by harm, including

Marin Countyâ&#x20AC;&#x2122;s Adult Restorative Justice Program The Marin County District Attorney's Office has utilized adult restorative justice practices in collaboration with our justice partners for years. If an individual is willing to accept responsibility for their actions and the vic-

the person who caused the harm. Restorative justice

tim agrees, we refer their case to the Probation De-

works to repair the harm, restore relationships and

partment's restorative justice program. This agree-

address the needs of the parties and their communi-

ment takes courage as the offender must be willing to

ty, allowing the person who caused the harm to be reintegrated back into their community as a whole and healed individual.

Accountability in Restorative Justice Many people think restorative justice is a vehicle for people to avoid taking responsibility for their actions. In fact, it is exactly the opposite. The common theme among varieties of restorative justice is accountability, with the focus on determining the underlying cause of the harmful conduct in order to fully address it. Getting to the root cause of behavior requires hard work and the process can sometimes be a lengthy one. Some methods involve peer counseling while others require a skilled practitioner, or both.

accept responsibility and be held accountable and the victim must be willing to participate in a dialogue regarding how they have been impacted. Marinâ&#x20AC;&#x2122;s program coordinator is Cindy Ayala, an experienced practitioner who works directly with offenders to determine the root

causes of their behavior. That process can take weeks or longer, depending on the participants. Cindy then meets with the victims to discuss the harm caused to them as well as their needs and concerns. This process may lead to a face-to-face meeting if the parties are willing and ready. Victims may choose to have a support person present during the meeting. During the meeting the two parties

discuss what happened and how to repair the THE MARIN LAWYER An Official Publication of the Marin County Bar Association

harm and move forward. This navigation requires patience and expertise on Cindy's part as often there are barriers on both sides.

Youth Restorative Justice Programs and the School-to-Prison Pipeline By implementing restorative justice in the

The process creates an opportunity for the

classroom, children can learn skills of collabo-

person responsible to be accountable, learn from their actions and hear the victim's per-

ration, effective communication and accountability. By not punishing and expelling them,

spective. For their part, victims are heard, have a say in how the harm will be repaired

we interrupt the school-to-prison pipeline for those who are at risk. Punishment or expul-

and can heal from the process. The rate of recidivism is low for those who successfully

sion can be emotionally challenging, confusing and even damaging, especially if it hap-

complete the process, with a nearly perfect satisfaction rate

pens repeatedly. It can begin a downward emotional spiral,

among victims. One recent victim

where a child no longer feels wel-

commented that, â&#x20AC;&#x153;You have no idea

come at school, in turn starting them

how good it feels to talk about this...,

on a path of looking elsewhere to

even now [during the pandemic].

feel a sense of connection and be-

Thank you....[N]ow

longing. If the child

I can let it go and

is also struggling at

take care of what I

home, punishment

now need. I can move on.â&#x20AC;? The De-

compounds his or her feelings of in-

partment recently added a new staff member to this valuable

ternal failure. These experiences are foundational to the core of a childâ&#x20AC;&#x2122;s self-esteem and

program and my Office is looking forward to expanding the nature of the cases we refer to

capacity to be resilient in the face of adversity.

it, including in select post-plea cases. As you can infer from the recent victim's comment,

Giving teachers and their students the skills

the program continues to operate remotely during the pandemic, which has the added benefit of accommodating victims who live far away. If you want to learn more about the program, you can contact Cindy Ayala here.

to be able to communicate effectively, address and resolve conflicts, and be held accountable in healthy ways teaches our children one of the most important lessons in life: We all make mistakes and there is a path

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

back when we do. Moreover, when teachers

Youth Transforming Justice: Since 2004,

and students learn how to communicate with

county activist Don Carney has run Marin

each other, how to grapple with difficult emo-

Youth Court (MYC), addressing misdemeanor

tions and understand what accountability

youth offenses with a restorative and trauma-

looks and feels like, they are more likely to

informed approach. Over that time, MYC has

use these skills outside the classroom in the

worked with nearly 1,300 teens and their

rest of their lives, further building their resili-

families, helping young people take accounta-

ence.

bility for their poor choices while keeping

Some restorative justice programs have participants seated or standing in a circle. Many

practitioners believe such a “restorative circle” is inspired in part by indigenous cultures

them out of the juvenile justice system. Nearly 95% of teens referred to the program com-

plete all requirements and recidivism is a low 7%.

around the world, the circular structure ensuring an equal voice for all. Some restorative

MYC cases involve a variety of school conduct violations and misdemeanors. Regard-

practices also utilize a talking stick, which is passed from speaker to speaker to ensure all

less of the violation, every Youth Court meeting starts with an educational-conversational

have an opportunity to voice their thoughts.

component about the realities of the drug and alcohol environment teens navigate in Marin

A Selection of Marin’s Youth Restorative Justice Programs Many Marin County schools have restorative justice programs in their curricula, including Tamalpais High School and Bayside Martin Luther King Jr. Academy. Additionally, the Center for Restorative Practices (Executive Director, Pastor Marcus Small) uses restorative justice practices countywide to help and

support families who have difficulty getting their children to school. It provides "Behavioral Intervention, Planning and Consultation,” creating an “Individualized Educational Plan” for each participant. Restorative justice practices for youth have deep roots in Marin and in the remainder of this article, I examine a few of the other youth restorative justice programs in Marin.

County. Peers provide information and harm reduction education is always a part of the discussion. The program’s commitment to providing youth with true agency is evident in the court hearings, all aspects of which are led by youth. MYC provides a unique opportunity for young people from across the county to gain leadership skills while supporting peers through the process of interviewing teens about their violation, support systems, drug and alcohol use, strengths, and interests in order to gain a fuller picture of why a violation occurred. Jurors then offer a restorative plan based on the teen’s individual needs and strengths to help reduce the chances of repeat violations. Participants return to serve on the jury for others as part of their

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

restorative plan. The peer support and empa-

the completion of the agreements. The desig-

thy from the jury is one of the most profound

nated CRM checks in with the parents to pro-

takeaways of youth court.

vide support and resources for challenges the

In July of this year, Don Carney and his team (formerly housed at the YMCA) launched an independent nonprofit called Youth Transforming Justice to realize Donâ&#x20AC;&#x2122;s vision of expanding services to include a robust School Suspension Alternatives program, Drug and Alcohol Safety Skills training for parents and

teens as well as a youth advocacy arm, which has launched a Youth Racial Equity advocacy

youth as well as the parents may be facing with completing the agreement or with life in general. This open line of communication allows the parents to share additional challenges the young person may be facing. The entire process may take two to three months. A second circle is held at the end of the process and

together they review the completion of the agreements and celebrate their success2.

team and will also focus on transforming the juvenile justice system. Joining Don, who is

Novato Unified School District: The Novato Unified School District (NUSD) serves stu-

the Executive Director, is Associate Director Julie Whyte and Restorative Justice Associ-

dents from preschool through high school. Last year, the district re-launched a restora-

ate Antonio Zavala. We look forward to Youth Transforming Justice's journey. Inter-

tive justice program as part of the Healthy Novato Initiative. The process starts with

ested in volunteering or watching a remote

something as simple as reminding staff to b

restorative court session? Contact Don Car-

mindful when speaking to students about

ney at dcarney@ytjustice.org.

their behavior. For example, replacing accu-

Consejo Restaurativo de Marin: Maite Duran, Drug Free Communities Project Coordinator for Alcohol Justice1 in San Rafael, coordinates a community restorative justice program called Consejo Restaurativo de Marin (CRM). The program currently has six bilingual and bi-cultural women who meet every Thursday to review cases referred by the Juvenile Probation Department. Due to COVID19, they are meeting via Zoom with the youth and their parent(s). After initial intake, they hold a restorative circle where they talk about the offense. The circle results in a number of agreements that the youth will complete. Parental and youth support are key to

satory language with supportive or helpful language. The program is run by Katie Cobbvon Husen, an experienced educator who supports prevention/intervention services at NUSD. It utilizes in-house restorative justice practitioners to focus on the cause of a child's

behavior rather than punishing the child. Instead of staff "putting out behavioral fires," Ms. Cobb-von Husen says that the program helps reduce or prevent them. Once the core reason for a behavior is identified, the practitioners create a program to assist the student, and often their family. In lieu of suspensions, the programs require hard work on the studentsâ&#x20AC;&#x2122; part. At the end of the day, youth

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

change their behavior and are more empathetic and understanding of one another. Terra Linda High School: Terra Linda High School French teacher Carolyn Quinby created a very popular restorative justice class, which attracts a diverse group of students. Like other school restorative justice programs, the class works with students who have issues that regularly arise at schools, such as attendance, tardiness, and vaping.

When the class begins to see recurring issues, they create a flow chart of suggestions to help students navigate through these problems. They follow through with peer support, which has proven rewarding for all parties. The class often does not know from week to week what problem they will be addressing, which makes for a lively and engaged class.

Marin City Ghostbusters: Led by Juanita Edwards and Florence Williams, the Marin City Restorative Justice Group has over the years conducted a variety of trainings and programs. These have ranged from working with former judge Marilyn Mackle to hold ongoing restorative justice circles at Bayside Martin Luther King, Jr. Academy, to training staff and board members at the Marin City Community Development Corporation, to ad hoc work with the families of students fighting in school. The Group is now developing its new “Ghostbusters” team. The team will work with the Sheriff’s Department as part of its first response to address minor conflicts, especially involving youth. But the team will also serve as a resource for the entire community, both youth and adults, who can call on it to resolve THE MARIN LAWYER An Official Publication of the Marin County Bar Association

conflict using a restorative justice approach anywhere in the community as needed and requested.

LORI E. FRUGOLI, MARIN COUNTY DISTRICT ATTORNEY Connecting the Community to the Courthouse.

Conclusion These restorative justice programs are just a few examples of programs currently serving Marin, illustrating what is possible with restorative justice. Many local communities are also utilizing restorative justice informally, as

Lori Frugoli is a Marin native and was first inspired to keep Marin safe when she participated in a Law Enforcement Ride-a-Long program while attending Terra Linda High School. She was one of the first women to volunteer as a Reserve Police Officer in San Rafael and later became a Police Officer for the Santa Rosa Police Department where she chose the Downtown Walking beat in order to

Marin City has. Both formal and informal

meet and learn about her community. While at Santa Rosa

practices improve our schools and the admin-

she investigated arsons, fraud and embezzlement cases and

istration of justice, strengthen social cohesion and help stop the school-to-prison pipeline. Restorative justice practices are also used in businesses, law enforcement, churches, community organizations, and even in the District Attorney's Office. The Transformative Justice Institute has assisted our office in teambuild-

ing and holding courageous conversations. Its founder, Rochelle Edwards, says, "Communication creates community." Maintaining community has never been more im-

served as a member of the Hostage Negotiations Team. Lori worked her way through law school while working for the Marin County Sheriff's Office. In 1990 she became a Deputy District Attorney for the County of Marin and in 2018 she was elected to serve as Marin County's District Attorney. Lori has earned many prestigious awards and recognitions, as well as a reputation in the community for treating all people with respect and professionalism. A few of Lori's accomplishments as the DA include: establishing an immigration relief program, co-hosting a Gun Violence Restraining Order

training for law enforcement and the community, host Not in Our Town (anti bullying and hatred) events and establish a working group of community leaders to ensure an open line of communication between the DA's office and the community. WEBSITE

portant in our lifetimes than at this isolating moment in time. 1

MCBA Alcohol Justice promotes evidence-based public health policies

and organizes campaigns with diverse communities and youth against the alcohol industry’s harmful practices. Have you ever seen materials warning about the dangers of "alcopops," alcohol that tastes like candy? Have you ever noticed that many stores stock these sweet alcoholic drinks out of arms reach of youth? You can thank Alcohol Justice for measures like this. 2

Alcohol Justice also has “Youth for Justice,” leadership programs

and a year-round Alcohol and Other Drug (AOD) program for Latinx youth. Youth learn about community organizing principles for AOD prevention and learn Latino-Indigenous culture as a source of strength, motivation and self-esteem. To learn more about Alcohol Justice’s programs, check out its website.

MEMBERSHIP BENEFITS Networking & Community Learning & Education Volunteer & Leadership Opportunities Professional Credibility

View this article at Marinbar.org THE MARIN LAWYER An Official Publication of the Marin County Bar Association

EYEWITNESS TESTIMONY FAIR HOUSING The Trouble with Eyewitness Testimony: It’s Worse than You Think KARTHIK RAJU

Eyewitness testimony can be the most com-

timony carries inherent risks of being inaccu-

pelling piece of evidence against the accused in a criminal trial, often making or breaking a

rate.

case. According to Justice William Brennan Jr., “There is almost nothing

A growing body of research bears this out.

Much of this research suggests different pro-

more convincing than a live human being who takes the stand, points a finger at the defendant, and says ‘That’s the one!’” (Adam Benforado, Unfair: The New Science of Criminal Injustice 122 (2015).) Unfortunately, that is a problem: Eyewitness testimony is far too often inaccurate. Hundreds of innocent people have suffered years of incarceration as a result.

cedures in the criminal justice system would

According to the Innocence Project, in the United States, almost 70 percent of the peo-

produce more reliable evidence and yet traditional eyewitness identification techniques

ple exonerated post-conviction by DNA evidence had been convicted on the basis of eye-

persist in most jurisdictions. Erroneous convictions that result from misidentifications

witness misidentification. (Alexis Agatho-

carry enormous costs not only in years of in-

cleous, How Eyewitness Misidentification Can Send Innocent People to Prison (Apr. 15, 2020),

nocent lives spent incarcerated, but in the guilty remaining at liberty to commit more

Innocence Project website, accessed Aug. 30, 2020.) In truth, the malleable nature of hu-

crimes, and in the public’s loss of confidence in the criminal justice system. That system

man memory and the limitations of (usually visual) perception mean that eyewitness tes-

needs to recognize that memories are neither static nor unsusceptible to outside corruption

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

and that human perception has limitations

crime. One week after that identification, she

not apparent in everyday life.

identified White in a live five-person lineup. At trial, the victim unmistakably pointed out

Wrongly Identified Three Times John Jerome White was sentenced to life in prison for the assault and rape of a 74-yearold Manchester, Georgia woman. He spent more than twenty years in prison before DNA evidence exonerated him. His case exemplifies the extraordinary credit juries give to

eyewitness testimony and the devastating impact that poorly conducted identification procedures can have upon the innocent. The victim in White’s case was attacked as she slept in her residence on the morning of August 11, 1979. She was beaten, raped, and robbed. So severe were her injuries that a rape kit could not be administered. At the

crime scene, police recovered hairs on a bedding sheet that they determined were left by the perpetrator. The science of DNA evidence

White, stepping off the witness stand and declaring, “That’s him!” White never wavered in maintaining his innocence. In 2007, DNA tests on the hairs found at the crime scene excluded White from being the perpetrator. The actual attacker was identi-

fied, convicted, and sentenced to prison. Astonishingly, the real assailant had actually been one of the four fillers in the live lineup procedure, standing just two places away from White. And yet the victim identified White as the perpetrator with confidence. Clearly, in any given case, eyewitness testimony needs to be critically evaluated in order to assess what weight it should be given. The Flaws of Memory and Perception At White’s lineup, the victim stood eye-to-eye

was not sufficiently developed at the time to be used in court, and under cross-

with her attacker. She had no incentive to pick White over the actual assailant who

examination at White’s trial, the criminalist testified only that the hairs “could” have come

stood just a few feet to the right of White. There is no reason to believe she had any-

from White. (Benforado, supra, at 122.) Indeed, the physical evidence was far from

thing but an earnest belief that White was the culprit. But her faulty memory and/or misper-

compelling. But the eyewitness testimony was just the opposite.

ceptions resulted in a series of erroneous positive identifications.

Police had created a sketch of the assailant

Many of us imagine the mind as functioning

based on the victim’s physical description. Weeks later, a detective investigating White

like a videorecorder, recording events and having the capability to simply rewind and re-

for a separate crime believed White matched

play a memory. But as Benforado writes,

the sketch from the rape case. The police then created a photo lineup and the victim posi-

“Memory is a constructive process perhaps best likened to creating a collage: we piece

tively identified White six weeks after the

together various fragments and then fill in the

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

inevitable white patches with our background

glasses. But what happened after the crime

knowledge, desires, and beliefs until we have something that is complete and usable. When

itself also colored the validity of her identifications. When shown the photo lineup, the

we go to retrieve a memory, we are not simply rummaging through an old filing cabinet for

victim identified White but expressed some hesitation. Police therefore conducted a live

a snapshot; as we search, we may in fact be rearranging the image.” (Benforado, supra, at

lineup one week later, where the victim stated she was convinced the attacker was White.

129-130.)

But only one person appeared in both the

We commonly view our own memories as im-

photo and live lineups: John White. Did the

mutable, and few people appreciate the ex-

victim identify White at the lineup not be-

tent to which our recollections are impacted

cause she recalled White as the person who

by circumstances existing at the time of an

attacked her weeks before, but instead be-

event, not to mention by circumstances after

cause she recalled him as the person she saw

it. Our perceptions can be unconsciously in-

a picture of and identified just days before?

fluenced by many factors, such as lighting,

“Experimental evidence confirms that having

noise, or the perpetrator and victim being of

come across a person’s face in a book of mug

difference races. (Thomas D. Albright, Why

shots significantly increases the likelihood

Eyewitnesses Fail, 114(30) Proc. Natl. Acad.

that a witness will select that person at a later

Sci. U.S.A. 7758-7764 (2017).) Use of a weapon during a crime has the effect of focusing an

lineup, even when the actual perpetrator – someone else – is present.” (Benforado, supra,

eyewitness’ attention on the weapon and not

at 136.)

the perpetrator. (Benforado, supra, at 132.) Stress and emotion negatively affect the accuracy of memory. (Kenneth A. Deffenbacher et al., A Meta-Analytic Review of High Stress on Eyewitness Memory, 28(6) Law and Human Behavior 687-706 (2004).) Information learned about an event after it has already been perceived can also influence the earlier memory. And what will come as no surprise to many readers, memory retention rapidly declines with the passage of even just minutes. (Agathocleous, supra.) The victim in White’s case was 74 years-old. Limited light in the room compounded the inaccuracy from the victim not wearing her eye-

Other perhaps surprising factors can also influence and corrupt a recollection. Seemingly innocent statements made by officers during the course of an identification procedure can taint a memory. For example, positive feed-

back from officers such as, “You got him!” after a victim makes an initial identification can serve to confirm her identification, inflating her confidence in the recollection, including one that is incorrect. New Jersey Takes the Lead New Jersey has been at the forefront of reforming identification procedures and the ad-

missibility of such evidence. In 2011, the New

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Jersey Supreme Court issued a groundbreak-

tification. (Id. at 290-293.) Moreover, the

ing decision intended to reduce the likelihood of false identifications. (State v. Hender-

Court found that enhanced jury instructions should be given on factors that may implicate

son (2011) 208 N.J. 208, 287, modified

the reliability of an identification in appropri-

by State v. Anthony (2019) 237 N.J. 213, 233.)

ate cases. (Id. at 298.)

In Henderson, the court explained, “We are convinced from the scientific evidence in the record that memory is malleable, and that an array of variables can affect and dilute memory and lead to misidentifications. Those factors include ‘system variables’ like lineup procedures, which are within the control of the criminal justice system, and ‘estimator variables’ like lighting conditions or the presence of a weapon, over which the legal system has no control.” (State v. Henderson, supra, at 218.) A defendant who can establish suggestive-

ness resulting from a system variable is entitled to explore the effect of system and estimator variables at a pretrial suppression hearing. (Id. at 288.) A non-exhaustive list of factors a court should consider in evaluating whether there is evidence of suggestiveness include: whether the administrator told the eyewitness that he is not obligated to make an identification and that the suspect may not

A Call to Action The number of wrongful convictions attributable to misidentifications and the associated individual and societal costs demand wide-

spread adoption of research-informed eyewitness identification procedures. It is time for California to take meaningful steps to reform the criminal justice system by simply accounting for reality: memory and perception operate differently from how that system assumes they do and the criminal justice system needs to change in light of the evidence. It is not an easy task but the costs of not undertaking it are high, including one our Constitution abhors: the innocent going to jail. View this article at Marinbar.org Karthik Raju is a Deputy Public Defender at Marin County Public Defender and is a Board Director for the Marin County Bar Association. WEBSITE

be present in the lineup; whether the witness received any information or feedback about the suspect or crime, either before, during, or after the identification procedure; whether the administrator recorded a statement of confidence from the witness immediately after the identification, before the possibility of taint from any confirmatory feedback; and

whether the case involved a cross-racial idenTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

WEBINAR RECAP FAIR HOUSING SCOTUS Update with Professor Rory Little AHTOSSA FULLERTON

On July 23rd, MCBA welcomed member1

Clarence Thomas (3rd in line), with a reputa-

favorite Professor Rory Little for his annual

tion for rarely asking questions, asked many,

SCOTUS update: “The U.S. Supreme Court:

and quite vigorously, presumably correlated

Ruling in Unprecedented Times.” In his ninth

to the new format. Professor Little suggested

year presenting to MCBA, Professor Little’s

that anyone listening to these hearings would

deep knowledge and wry humor shone through on Zoom screens throughout Marin

form a new impression of Justice Thomas.

and beyond. What members lost in the lack of a meal and in-person camaraderie, they gained with front row seating, and the opportunity to watch Professor Little in their pajamas, truly a once-in-a-lifetime experience (or perhaps twice or thrice, depending on the course of the pandemic.) Professor Little called this court term “unprecedented” in that the Supreme Court canceled two months of oral argument, something that had not occurred since the Civil War. In May, the Court embarked on a first for the Court: hearing 10 cases via livestream audio and allowing the public to listen live. The first two cases, considered by some to be less complex, allowed the court to “practice” the new audio format in preparation for the following eight cases, purportedly of greater import. The Court postponed twelve cases to its next term, to be heard in October. During those May hearings, each Justice was allotted a specific length of time to ask ques-

tions, in descending order of seniority. Justice

Professor Little described this term as “small,” relatively, in that only 53 cases resulted in signed opinions. A few notes on the more high -profile cases he discussed: 1. McGirt v Oklahoma. The Court ruled that 40% of the state of Oklahoma is currently “Indian country” and not part of Oklahoma. Justice Gorsuch has had a particular interest in Native American law and ruled with the majority. 2. Trump v. Vance and Trump v. Mazars. The Court considered whether third-party subpoenas seeking financial records of Donald Trump could be enforced. The Court decided these subpoenas could be enforced and that state grand juries and Congressional committees have authority to subpoena them. The Court ordered that on remand, the lower court consider subpoena-specific details, such as whether the subpoena is valid, narrow and not harassing. But ultimately, the President has no immunity from enforcement of a subpoena, nor is there a higher standard for him (or someday, her).

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

United States Supreme Court Building Photo Credit

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

3. Bostock v. Clayton County (and consolidated

lier decision, court watchers were much more

cases). These cases raised the question whether Title VII of the 1964 Civil Rights Act

interested in what the fractured set of opinions revealed about the justices’ views on

prohibiting discrimination “because of…sex”

stare decisis. You can find out in another arti-

includes discrimination on the basis of sexual

cle in this edition of the Marin Lawyer.

orientation and gender identity. Justice Gorsuch wrote the opinion for the six-member majority, concluding that the “plain language” of the statute is clear that it does. The Marin Lawyer has been following these cases and

you can read a detailed analysis of them here.

7. County of Maui v. Hawaii Wildlife Fund. The Court found that the Clean Water Act’s requirement for a permit to discharge pollutants from a point source into navigable waters applies even when the pollution is not

4. Chiafalo v. Washington and Colorado Depart-

discharged directly into navigable waters but also when it is the “functional equivalent of a

ment of State v. Baca. A unanimous Court found that states can punish “faithless elec-

direct discharge,” in this case via groundwater. Justice Kavanaugh voted with the majori-

tors,” i.e., those who do not vote for the candidate they were elected to vote for.

ty.

5. Homeland Security v. Regents. Was the

the government edicts doctrine, government

Trump administration’s revocation of DACA

officials cannot copyright work created as

legal? In a 5-4 decision, the Court said no, re-

part of their official duties. This has long in-

manding the case for further action. At its core, it was a simple administrative law case,

cluded the language of the law itself but the Court ruled that it also includes annotations

and the Court ruled that the government was arbitrary and capricious in its action.

created under contract with the state.

8. Georgia v. Public.Resource.Org, Inc. Under

6. Ramos v. Louisiana. Two states (the other

This summary cannot replace Professor Little’s fun and informative program. We are

was Oregon) allowed nonunanimous criminal jury verdicts. The Court has held that the Bill

fortunate he will be returning to MCBA this November for the annual MCBA CLE Fair,

of Rights requires unanimous verdicts, but only in federal cases, as a result of the all-too-

taking place right after the November election. Undoubtedly Professor Little will have a

common 4-1-4 voting pattern with Justice

lot to say. We hope you can join us!

Powell at the center. In revisiting the issue of whether unanimity is required in state verdicts (via the Incorporation Doctrine that fundamental rights apply to the states through the 14th amendment), the Court decided that it is. Because the decision overturned the ear-

Rory Little is the Joseph Cotchett Professor of Law at UC Hastings, where he has been teaching since 1993. He is a former U.S. Supreme Court Law Clerk, and has worked as both a federal prosecutor and federal defense attorney. From 1996-1997, he served as an Associate Deputy U.S. Attorney General under Janet Reno. At Hastings, he teaches Constitutional Law, Criminal Law and Legal Ethics.

View this article at Marinbar.org THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Source: https://www.supremecourt.gov/opinions/19pdf/18-5924_n6io.pdf

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

STARE DECISIS FAIR HOUSING How Many Jurors Does It Take to Overrule a Precedent? Ramos v. Louisiana and Stare Decisis ANDREW J. CHAN & ALEX D.W. PROMM

In its recently ended term, the Supreme Court

Gorsuch said in his opinion in Ramos, stare de-

held that the Sixth Amendment right to a jury trial, incorporated against the states, requires

cisis is not supposed to be, “the art of methodically ignoring what everyone knows to be

a unanimous verdict to convict a defendant of a serious offense in state court. (Ramos v. Loui-

true.” (Ramos, 140 S. Ct. at 1405.)

siana, 140 S. Ct. 1390 (2020).) The case generated substantial interest even though only two states permitted non-unanimous verdicts (the other was Oregon). Why? Because the case involved overruling a precedent, Apodaca v. Oregon, (1972) 406 U.S. 404, and offers an opportunity to read the judicial tea leaves for how the justices’ views on stare de-

The Court traditionally considers the following factors when it revisits precedent: (1) The quality of the decision’s reasoning; (2) Its consistency with related decisions; (3) Legal developments since the decision; and

(4) Reliance on the decision.

cisis might apply to other precedents, Roe v. Wade among them.i

(Ramos, 140 S. Ct. at 1404; Franchise Tax Bd. of

Overruling Precedent. While precedents warrant deep respect be-

In overruling Apodaca v. Oregon, (and its companion case, Johnson v. Louisiana, 406 U.S. 356

cause they embody the considered views of those who have come before, stare decisis

(1972)), the Ramos Court criticized Apodaca’s reasoning, especially Justice Powell’s solo

has never been treated as “an inexorable command.” (Pearson v. Callahan, 555 U.S. 223,

concurrence that agreed with one set of four justices for federal courts and the other set of

233 (2009).) It is at its weakest when the Court interprets the Constitution (as opposed

four for state courts, creating different rules for each, and especially the functionalist (i.e.,

to a statute) because a mistaken judicial interpretation of the Constitution is often practi-

cost-benefit) approach of the five justices who ruled that the unanimity requirement did

cally impossible to correct through other

not apply to the states (factor one above). The

means. (Ramos, 140 S. Ct. at 1404; Agostini v. Felton, 521 U.S. 203, 235 (1997); Payne v. Ten-

Court discussed the history of the Sixth Amendment’s unanimity requirement before

nessee, 501 U.S. 808, 828 (1991).) As Justice

and after Apodaca (factors two and three) and

Cal. v. Hyatt, 139 S. Ct. 1485, 1499 (2019).)

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

minimized the impact of its decision on the states’ reliance interests in avoiding retrial in pending cases (factor four). We discuss each of the Court’s five opinions, highlighting portions that give insight into the justices’ views on stare decisis. Justice Gorsuch, Writing for the Court, Joined in Full by Justices Ginsburg and Breyer and in Part by Justices Sotomayor and Kavanaugh.

trines. (Id. at 1404.)

Justice Sotomayor, Concurring in Part. Justice Sotomayor wrote that overruling Apodaca was not only warranted, it was compelled. She emphasized that Apodaca was based on the plurality opinion of one justice that was irreconcilable with two strands of well-established constitutional precedent. Moreover, the constitutional criminal jurisprudence interests at stake were even great-

Justice Gorsuch, joined by Justices Ginsburg

er than the property and contract interests in

and Breyer, questioned whether Apodaca was even controlling precedent. He distinguished

other recent cases where the Court overruled precedent. She also felt that the racism driv-

Marks v. United States, 430 U.S. 188 (1977), which held that when a fragmented Court de-

ing the original adoption of the Louisiana and Oregon laws permitting nonunanimous jury

cides a case and no single rationale explaining the result enjoys the assent of five Justices,

verdicts (something acknowledged by all parties) weighed in favor of overruling Apodaca.

the holding of the Court may be viewed as that position taken by those justices who con-

(Id. at 1408-1410.)

curred in the judgments on the narrowest grounds. (Ramos, 140 S. Ct. at 1403.) Justice Gorsuch asserted that Justice Powell’s unilateral dual-track rule in Apodaca yielded no controlling opinion because other members of the Court rejected the rule and it was contradicted by an unbroken line of ma-

jority opinions before and after Apodaca. (Id. at 1403-1404.) He also noted that adherence to precedent with no controlling opinion would do more to harm than advance stare decisis: It is usually a judicial decision’s rea-

Justice Kavanaugh, Concurring in Part. Justice Kavanaugh wrote an extensive historical review of the Court’s views on stare decisis. In doing so, he cited the term’s literal Latin meaning, Blackstone, the Federalist Papers, the current justices’ votes in other cases overruling constitutional precedents, and past notable and consequential landmark cases requiring the Court to overrule precedent to reach the decisions it did. Acknowledging that adherence to precedent is the norm, Justice Kavanaugh distinguished

soning that allows it to have life and effect in the disposition of future cases; unexplained

overruling it in statutory cases from constitutional cases:

decisions settle the issue for parties, but are not read as a renunciation of prior legal doc-

1) Stare decisis is comparatively strict in statutory cases because Congress and the

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

President can alter the precedent by changing the statute;

factors);

2) Stare decisis is not as “inflexible” in consti-

2) Whether the prior decision caused significant negative jurisprudential consequences

tutional cases, however, because the only al-

(including examination of workability, and

ternative to overruling prior decisions is a constitutional amendment.

consistency and coherence with other decisions among other factors) or significant neg-

(Ramos, 140 S. Ct. at 1412-1413; Agostini v. Felton, 521 U. S. 203, 235 (1997).) Stare Decisis in Constitutional Cases In reviewing the Court’s historical approach

ative real-world consequences; 3) Whether overruling the prior decision unduly upsets reliance interests. (Id.)

Justice Thomas, Concurring in the Judgment.

to stare decisis in constitutional cases, Justice

Justice Thomas concurred in the judgment,

Kavanaugh concluded that the Court has held

but took a unique approach. He cited the

that it must find some justification beyond

Court’s clear precedent that the Sixth

that a case was merely wrongly decided. (Ramos, 140 S. Ct. at 1413-1414.) He then

Amendment requires a unanimous jury verdict in felony trials, noting the Court had re-

goes on to explore the factors the Court has used in finding that justification, arriving at a

peatedly reaffirmed it. He then cited his own concurring opinion in Gamble v. United States

list of the four factors outlined above but with some additional ones: the age of the prece-

(139 S. Ct. 1960 (2019)) wherein he rejects the Court’s historical approach to stare deci-

dent, changed facts since the earlier decision, and the “workability” of the precedent. (Id. at

sis because it, “elevates demonstrably erroneous decisions—meaning decisions outside the

1414.) But he concluded that the Court had not established a consistent methodology or

realm of permissible interpretation—over the text of the Constitution and other duly enact-

roadmap for how to analyze these factors taken together. (Id.)

ed federal law.” (Id. at 1981.)

Justice Kavanaugh felt that all of these fac-

Justice Thomas’ approach entailed examining the history of the view that unanimous ver-

tors “fold into” three broad considerations for overruling a prior constitutional decision:

dicts are required in order to determine whether the precedent is “demonstrably er-

1) Whether the prior decision was not just

roneous,” i.e., “outside the realm of permissible interpretations.” He concludes that it is

wrong but grievously or egregiously wrong (including examination of the quality of the precedent’s reasoning, consistency and coherence with other decisions, changed law, changed facts, and workability among other

not and is therefore entitled to stare decisis deference. (Ramos, 140 S. Ct. at 1423.) What Justice Thomas is essentially saying is that any decision that goes beyond his originalist

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

view of what the Constitution permits should

portant factor weighing against overruling

be overruled. (He goes on to reiterate his

Apodaca was the Louisiana and Oregon state

view that it is the Privileges and Immunities

courts’ reliance on it, finding that the Court

clause that leads to incorporation of rights

was imposing a potentially crushing burden

against the states, not the Due Process

on the courts and criminal justice systems of

clause.)

those states. Indeed, he found that the reli-

Justice Alito, Dissenting, Joined in Full by Chief Justice Roberts and in Part by Justice Kagan. Justice Alito did not break new ground in his treatment of stare decisis. Essentially, he considered the same factors as the majority but weighed them differently. In particular, he viewed the majority as “lowering the bar” for overruling the Court’s precedents because it placed far too little weight on the reliance interest in Apodaca. Justice Alito objected to the reasoning of the three justices who argued that Apodaca was not actually a precedent. He found that the Marks rule still applied to the decision and Justice Powell’s solo concurrence easily satisfied that rule as the narrowest common ground for the result that required unanimity of jury verdicts in federal but not state courts. (Ramos, 140 S. Ct. at 1430.)

He then examined the traditional factors for

ance interest weighed decisively against overruling, finding that it was greater than in any of several contemporary cases where the Court overruled precedent. (Id. at 1432-

1436.) Justice Alito made a point of claiming that any racial motivation for the original nonunanimous verdicts laws was irrelevant (Id. at 1426 -1427) and noted with a certain biting humor that the majority made a badly fractured decision with no apparent appreciation of the irony of its criticism of Apodaca as “badly fractured.” (Id. at 1432-1436.) i

Please note that the Court’s Sixth Amendment opinions are outside the scope of the article.

View this article at Marinbar.org Andrew J. Chan is Senior Counsel in Ericksen Arbuthnot’s Oakland/East Bay office and a member of the firm’s Appellate and Insurance Coverage Practice Groups. Mr. Chan can be reached at (510) 832-7770 or

deciding whether to overrule a precedent as the majority did but disagreed with the ma-

achan@ericksenarbuthnot.com.

jority’s interpretation of those factors. He noted the majority’s main factor was the

Arbuthnot’s Oakland/East Bay office and a

“poor quality” of the reasoning of the Apodaca opinions and then proceeded to rebut the objections to that reasoning. He briefly exam-

Alex D.W. Promm is an Associate in Ericksen member of the firm’s Construction Practice Group. Mr. Promm can be reached at (510) 832-7770 or apromm@ericksenarbuthnot.com.

ined other factors but found that the most imTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

NONPROFIT PROFILE FAIR HOUSING IANGEL: Transformative Gender Justice CALI CRUM, LEGAL INTERN IANGEL

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Survivors of human trafficking tend to come from legally and socially vulnerable populations, including recent immigrants and people trapped in cycles of poverty. (While the large majority of trafficked individuals are women and girls, people of all genders are trafficked and IANGEL's pro bono network helps everyone.) Those benefiting from the trafficking often push trafficked individuals into crimes intentionally, as a means of control. Because of the way our criminal justice system currently functions, law enforcement is often not equipped with the training that would allow arresting officers to identify and respond accordingly when a person is coerced.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Trafficked individuals are thus prone to accu-

vides a distinct opportunity for the criminal

mulating extensive criminal records.

justice system to make amends with survivors

Why Post-Conviction Relief Matters. Conviction and arrest histories have a significant, negative impact on survivors. Many applications for public assistance require disclosure of criminal records and many programs and opportunities are unavailable to those with criminal records. Specifically, a criminal

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being trafficked can petition the court to have his or her record of arrest and conviction va-

child custody, which perpetuates an unstable family life for all involved. Without post-

cated. It defines “a victim of human trafficking” as a person whose personal liberty has

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been deprived or violated in pursuit of forced labor services, forced sexual exploitation or

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The California Vacatur Law gives survivors an

§ 236.14(t)(3).)

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fense was committed as a direct result of being a victim of trafficking. Additionally, a

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judge must determine that the survivor is making a “good faith” effort to distance her-

engage survivors in helping to end human

self or himself from the trafficking experi-

trafficking. When survivors have greater opportunities for success and stability, they may

ence, and that it is in the survivor’s best interest to vacate the arrest and conviction rec-

share their stories and educate the community more broadly, influencing policy to create

ords. If the court finds in favor of the survivor, then the survivor’s criminal record is vacated

stronger protections for victims and survivors of trafficking. Post-conviction relief also pro-

and, in effect, the offenses are deemed not to have occurred. Vacatur relief also allows a

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

survivor to lawfully state that she has never

er services. To learn more about IANGEL’s

been charged or convicted of the crimes for

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ality experience their best lives, visit its website, where you can also donate. If you would like to view the training and/or represent trafficking survivors in vacatur proceedings, email IANGEL.

Homeland Security/Citizen and Immigration Services can access and view expunged rec-

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Because the California law provides relief only to those survivors who have the legal resources to pursue vacatur, IANGEL organizes trainings to maximize pro bono representation in post-conviction relief proceedings. Attorneys come away equipped with the basic tools to represent human trafficking survivors. Notably, IANGEL’s trainings address culturally-specific needs of many of the survivors as well as the effects of the trauma of being trafficked and how they affect representation.

The vacatur training is just one of several programs designed to advance IANGEL’s belief that all people have the rights to selfdetermination and to live freely without the fear or fact of sexual, emotional, and physical violence. IANGEL partners with nonprofit law firms around the world to help ensure trained volunteer lawyers are available to support survivors with post-conviction relief and othTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

Interested in sponsorship? Contact Mee Mee Wong at mwong@marinbar.org 59

THE BROCKBANK POLITICAL REPORT FAIR HOUSING Marin's Local Races, The State Ballot Measures, Control of Congress, and Biden v. Trump GREG BROCKBANK Note: The views expressed in this article are opinions of the author and are not intended to reflect those of MCBA nor is this column an endorsement of any candidate.

MARIN’S LOCAL NONPARTISAN RACES: CITY COUNCILS AND SCHOOL BOARDS AND SPECIAL DISTRICTS, OH MY! You may recall that Marin’s local nonpartisan races were mostly held in odd-numbered

Thier) file for re-election, so it will not have a

years until the law changed a few years ago to

race on the ballot and the two will be automatically appointed to new four-year regular

get higher turnout. Many of us thought that was a mistake, because now local candidates have to compete with partisan statewide and

terms. Uncontested elections are very common in special districts, and somewhat com-

even presidential candidates for voters’ time,

mon among school boards, but relatively un-

attention, volunteer help, and donations. The

common in council races, as evidenced by the

close of filing for the November election was

other five cities all having contested races on

in mid-August, as always, but this election

the ballot for their city councils.

now has a larger number than ever of potential and actual races. (A race shifts from potential to actual when more candidates file than seats available.) Marin has nine incorporated cities and towns (no real difference) with elected city or town councils, but three of them (Novato, Corte Madera, and Ross) just had council elections last November (for the last time in an odd-

SAUSALITO Sausalito has the largest field of candidates – six – including one incumbent (Joan Cox) and five others: Vicki Nichols (a planning commissioner who has run twice before, and I think will be a favorite this time), Melissa Blaustein (who also ran two years ago), Aaron Singer, Janelle Kellman, and Ian Sobieski.

numbered year), or this past March, so they do not have scheduled races this November.

SAN RAFAEL MAYOR

And among the other six, Tiburon had only the two incumbents (David Kulick and Holli

has Marin’s only directly elected mayor, because the charter requires that. Every other

San Rafael is Marin’s only charter city, and

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

city in Marin rotates the mayor’s job yearly

Fairfax has all three incumbents up this year

among the five elected councilmembers. In San Rafael, incumbent Gary Phillips is step-

running for re-election – Bruce Ackerman, Barbara Coler, and John Reed, along with

ping down after eight years, and Vice Mayor Kate Colin has long been known to be

two challengers: Joe McGarry and Chance Cutrano. Unless one or more incumbents

ready to run to replace him, and is in fact the strong front-runner. At the last minute, an-

have suddenly become unpopular and/or there is a sudden issue dividing the town, or a

other candidate filed, a local shopkeeper named Mahmoud Shirazi, so there is an on-

fireball campaigner surprises everyone and sweeps public opinion, incumbents usually

the-ballot race.

win.

SAN RAFAEL DISTRICTS

SAN ANSELMO

This is San Rafael’s first election with its new districts, with two seats up this year and the

Similarly, all three incumbents in San Anselmo are running for re-election – Brian Colbert,

other two up in two years. In District One, which includes the Canal area, only one candi-

Alexis Fineman, and John Wright – along with two challengers: Eileen Burke and Ann

date filed to run for the seat – Maika Gulati, who happens to be the first Hispanic Presi-

Politzer.

dent of the San Rafael School Board. Unopposed, she will start a regular four-year term in December. District Four, covering the Terra Linda area, is the other seat up this year and is interesting because it features two other San Rafael School Board members (Rachel Kertz and

BELVEDERE

Here, only one incumbent is running for reelection – Nancy Kemnitzer – and there are three other new candidates – Steve Block, James Lynch, and Chelsea Schlunt – running for a total of three seats.

SCHOOL BOARDS

Greg Knell) challenging incumbent councilmember John Gamblin. And there is a

Marin has 18 school districts (including two of

fourth member of the same school board, Linda Jackson, who is running unopposed for an-

school districts in the state), all of which

the last six remaining one-room schoolhouse

other term, but may be appointed to Kate

should be potentially scheduled for trustee elections this year (again, mostly in the No-

Colin’s council seat if Colin wins the Mayor’s election. Jackson is a super-activist, and was a

vember election). But of the 32 or so potential races, only eight districts had more people file

long-time City of San Rafael planner, and would definitely be an outstanding coun-

for a seat than there were seats available.

cilmember.

FAIRFAX

MARIN COMMUNITY COLLEGE DISTRICT Also known as College of Marin, or the COM

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Board, it nearly always has a race, even when,

instead). The open seat has drawn two new

as in this case, all four incumbents up this year (it’s a rare seven-member board) are running

candidates: Gina Daly and Samantha Ramirez. As noted, Linda Jackson may be ap-

for re-election: Phil Kranenburg, Eva Long, Stephanie O’Brien, and Stuart Tanenberg.

pointed to the city council if Colin wins the mayor’s race so there could be another empty

They are being challenged by Paul Da Silva and Robbie Powelson. This is still a county-

seat after the election.

wide “at-large” race, although I understand they will be moving to district elections starting two years from now.

SAUSALITO-MARIN CITY This body has seen literally decades of controversy over everything from allegedly une-

MARIN COUNTY BOARD OF EDUCATION

qual funding of its two schools (one all Black, and one, a charter school, mixed), to an Attor-

This board has long elected its board members in individual “area” seats, and in all four

ney General’s report that concluded the district was segregated, to the current plan to

areas up this year (it’s another seven-member board), the incumbent filed to run for re-

merge the two schools into one school with two campuses. Since one of the schools is a

election. Only in Area Four was the incumbent trustee, Robert Goldman, challenged:

charter school, that would have to change in a merger. Both incumbents up this year have

by Felicia Agrelius, so the others get a “free

stepped down and there are four new candi-

ride” and one gets a rare (in this office) race.

dates running for the two open seats: Lisa

NOVATO

Bennett, Yasmine McGrane, Jennifer Conway, and Alena Maunder.

Novato is having its first election with new trustee areas, and three of the four seats’ in-

TAMALPAIS UNION

cumbents (because existing trustees were as-

This is another school district that has faced

signed to the new areas) filed to run for reelection and were unchallenged. But in the

controversy in recent years, from superintendent turnover to failed parcel tax measures

fourth, Trustee Area Three, the incumbent

(with another try this November – this one

stepped down, and there are two new candi-

just a renewal). The two incumbents, Leslie

dates for this true “open seat” – Desmond Fambrini and Julie Jacobsen.

Harlander and Karen Loebbaka, are running for re-election, along with three challengers

SAN RAFAEL

for the two seats: Tiffany McElroy, Mandy Downing, and Brandon Johnson.

In San Rafael’s new district areas, one incumbent (Linda Jackson) was unopposed, as mentioned, and the other seat up this year had the

incumbent step down (to run for city council

SPECIAL DISTRICTS MARIN HEALTHCARE DISTRICT

This is another big, almost-countywide (no

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Novato or West Marin) district that has had a

ine, and Matthew McMahon – challenged by

number of hard-fought controversies in recent decades, but not in recent years. I under-

Mark Tarpey-Schwed.

stand that they, too, will be going to district elections in two years, and many veteran board members stayed on to usher in the new Marin General Hospital wing, along with the replacement for longtime CEO Lee Domanico, who is retiring. And in fact, the two incumbents (two terms each?) are running for another term: Hank Simmonds and Anne Sparkman. But they are being challenged for their two seats by Edward Alfrey, yet another prominent physician (backed by veteran board member Larry Bedard), and Melissa Bradley, who founded Marin’s largest realty company and ran for this seat two years ago. MUIR BEACH COMMUNITY SERVICES DIS-

TRICT This tiny body in this tiny community often has spirited elections for board members, and tax measures, and in fact a few years ago held a public election forum at which more than half the district’s voters were present – how’s that for democracy? None of the incumbents are running for re-election this time, and

three candidates are running for the two open seats: David Taylor, Ming Hwang, and

MARIN MUNICIPAL WATER DISTRICT, DIVISION TWO This is one of the few special districts in Marin that has long elected its directors by district (they’re now joined by a few new ones), and with an incumbent stepping down (pretty rare: they tend to hang around for decades and

continue to get re-elected, usually), there is a true open seat in this Division, with three candidates: Carsten Anderson, Mark Lubamersky, and Monty Schmitt. MARIN MUNICIPAL WATER DISTRICT, DIVISION FIVE In the only other Division up this year on this often-controversial board, veteran incum-

bent Larry Russell is being challenged by Chris Hobbs.

STATE BALLOT MEASURES PROP. 14: STEM CELL RESEARCH FUNDING. This measure authorizes $5.5 billion in state general obligation bonds to fund grants from the California Institute of Regenerative Medicine, which would add to the amount from the original ballot measure that founded

Paul Jeschke.

and funded the institute. Like all bonds, more money will be paid back over time when inter-

TAMALPAIS COMMUNITY SERVICES DISTRICT

est in included, but I haven’t heard anything bad about the measure.

Another small CSD, which probably has more

PROP. 15: COMMERCIAL PROPERTY TAX

than its share of contested board member elections, and this year features all three in-

REASSESSMENTS. Over 40 years ago, California’s landmark Prop. 13 reduced all prop-

cumbents – Steffen Bartschat, Steven Lev-

erty taxes, and limited their annual increases,

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

a massive blow to local property tax control

completed their state or federal prison terms.

that is still controversial today. Most property tax used to be paid by commercial property

PROP. 18: VOTING AGE. This measure

owners, but now the majority is from residential properties because they at least get re-

election if they would turn 18 before the gen-

assessed occasionally, when they’re sold. Commercial properties tend to stay in the same name for decades longer, often a corporate name, specifically to avoid market-rate property taxes. This measure would fix this imbalance by regularly re-assessing commercial properties to market value, while leaving residential properties untouched except after sales, as per Prop. 13. The additional revenue would go to schools and local government

would allow 17-year-olds to vote in a primary eral election. PROP. 19: PROPERTY TAX TRANSFERS. Yet another in a long line of measures expanding Prop. 13 (or creating more loopholes, depending on your perspective). This one would al-

low people age 55 and older, and victims of wildfires and other disasters, to take a lower property tax basis with them when they move to a new home. PROP. 20: CRIMINAL SENTENCING IN-

budgets.

CREASES. This measure would expand the

PROP. 16: AFFIRMATIVE ACTION. Affirma-

list of violent crimes for which there is no ear-

tive action, despite varying definitions, was

seen for decades as giving a boost in university applications, hiring, and contracting to peo-

ly release, adding sex trafficking of a child and

felony domestic violence. It would also re-

ple of color who had, after all, been treated

quire DNA collection for those convicted of several types of misdemeanors.

unfairly for centuries. But the practice was

PROP. 21: RENT CONTROL. A few decades

banned (specifically, “quotas”) via ballot

ago, about a dozen large cities in California

measure in the 90s, establishing that there must be no racial preferences. These days, the

adopted their own rent control ordinances,

need for diversity is greater than ever, as is the awareness that affirmative action should be used to try and remedy past discrimination, and this ballot measure would reverse the ban and allow affirmative action once again. PROP. 17: PAROLEE VOTING. State laws vary in the extent to which they grant parolee and felon voting rights, and currently in California, parolees cannot vote. This measure would restore their right to vote if they’ve

and the Legislature responded in 1995 with the Costa Hawkins Rent Control Act, limiting cities’ ability in such ordinances to control rents to only buildings built before the Act was passed, and excluded various other building types from rent control, including singlefamily homes. Rents (and real estate prices generally) continue to be higher than in other states, and tenants are having to pay higher and higher percentages of their income for these rapidly-rising-for-decades rents. This

measure is being proposed to repeal the

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Costa Hawkins Act and allow local govern-

ed cash bail as a requirement to release peo-

ments to pass more restrictive rent control laws, despite the fact that the first-ever

ple from jail before trial. Not surprisingly, the bail bonds industry did not like that and quali-

statewide rent control law was passed last year which is quite similar to Prop. 21.

fied this measure for the ballot to overturn it.

PROP. 22: GIG WORKER CLASSIFICATION. California’s recent gig worker classification law, AB5, caused screams from many sectors, but none louder than ride-hailing giants Uber

and Lyft, and to a slightly lesser extent, DoorDash. They funded this measure to create an exception for them, to allow them continue to

CONTROL OF CONGRESS

classify drivers as independent contractors

HOUSE OF REPRESENTATIVES

rather than employees, which AB5 would oth-

Immediately after the Democrats flipped the

erwise force them to do. PROP. 23: KIDNEY DIALYSIS CLINICS. This measure would increase state regulation of dialysis clinics to, e.g., prevent discrimination based on source of income; it is almost identical to a measure that lost two years ago. This follows an increasingly common pattern of industry workers fighting what they claim are unsafe working conditions and inadequate patient safety, coupled with monopoly and excess profit by owners, through statewide ballot measures after failing in other arenas.

PROP. 24: CONSUMER DATA PRIVACY. This measure would expand California’s consumer privacy law, passed two years ago. It would triple penalties for companies that break laws regarding the collection and sale of children’s private information, and create a state agency to enforce consumer privacy

House and took control two years ago, Republicans vowed to win it back this year. I didn’t think then that would happen, and I still don’t, given that Trump is finally starting to fall in the polls, and he seems very likely to take a lot of Republicans with him. California is a good microcosm, where seven Republican House seats (out of 14) were flipped two years ago, and six of the new Democrats look to be in pretty good shape for re-election. The seventh resigned last year after a sex scandal, and a Republican recently won the special election. But the Democrat is likely to win the seat in November, given the greater Democratic turnout in a presidential election compared to a special election. Most individual House races don’t do public polling the way Senate races usually do, so we

protections.

can’t aggregate polls and tell you whether the Democratic majority will be larger (I think

PROP. 25: CASH BAIL. A 2018 law eliminat-

yes) and by how much (a dozen or two?), but

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Democrats have consistently led the “generic

and she and her husband founded an influen-

poll,” which asks voters whether they’d rather vote for an unnamed Democrat or an un-

tial gun control organization in response. Kelly leads McSally by over 10 points.

named Republican. Democratic “enthusiasm” has consistently been high, motivated primar-

MAINE: Long-time Republican incumbent Su-

ily by a visceral dislike of Trump, both personally and politically.

“moderate” because she sometimes talks like

SENATE When this election cycle started after the

2018 elections, Democrats faced an uphill battle to flip the Senate because even though two-thirds of the seats up are held by Republicans, most of them are in solidly red states, and things would have to fall just right to take the four seats needed for control (the Demo-

san Collins has long been considered she might buck her party and vote with the Democrats, but in the end she virtually never does. Most recently, her vote to confirm Su-

preme Court Justice Kavanaugh steeled antiCollins sentiment more strongly than ever, and her Democratic challenger, former Maine House Speaker Sara Gideon, leads Collins by five to 10 points in the polls. COLORADO: Republican incumbent Cory

crats are short three seats, but they will almost certainly lose their Democrat in Ala-

Gardner won this seat six years ago, and hasn’t done much in six years to improve his

bama, who won by a fluke in a special election

standing. And Colorado is not only purple, it

two years ago).

has elected mostly Democrats as senators

But now, things have shifted in the Demo-

and governors for a couple decades now, so arguably Gardner is a fluke. Democratic chal-

crats’ favor. Battles that looked like they’d be close, now have comfortable Democratic leads. Races thought to be unlikely to win are now neck-and-neck. The Democrats seem likely to win at least five or six seats, if not seven or eight. ARIZONA: Republican incumbent Martha McSally was appointed two years ago to fill out the rest of John McCain’s term, after just having lost a race for the state’s other Senate seat. The Democratic challenger is retired astronaut Mark Kelly, who is also the husband of former Congresswoman Gabby Giffords, who was shot at a public gathering several

years ago. She still struggles to walk and talk,

lenger John Hickenlooper was a Denver mayor, then governor, and still a folksy populist with good approval ratings, despite a pretty bad campaign for president and earlier saying he had no interest in this Senate seat. But

he leads Gardner by five to 10 points. NORTH CAROLINA: Republican Thom Tillis won this seat six years ago, but has been undistinguished (and unheard of) since then. Even so, many have been surprised to see former state legislator Cal Cunningham take a five to 10-point lead over Tillis in this usuallyred-but-turning-swing state.

IOWA: Republican incumbent Joni Ernst won

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

this seat six years ago and is best known for

GEORGIA-SPECIAL: Republican incumbent

saying she knew how to cut pork because she used to castrate hogs on her family farm. Her

Johnny Isakson resigned from his seat at the end of last year, and the governor appointed a

Democratic challenger, state legislator Theresa Greenfield, leads Ernst by less than five

wealthy businesswoman, Kelly Loeffler, who now has to win in November to finish out the

points.

full term. But she quickly got into trouble earlier this year when she bought and sold stocks

MONTANA: This very red state always votes Republican in presidential races, but has often had popular Democrats in the Senate and

the governor’s mansion, including now. The Republican incumbent is Steve Daines, but the Democratic challenger is Governor Steve Bullock, who spends most of his time dealing with COVID-19 in his role as governor, and is getting good reviews, and the result is a lead over Daines of less than five points. SOUTH CAROLINA: Republican incumbent Lindsay Graham hadn’t been considered endangered, but probably too many voters watched him turn too abruptly from Trump critic and rival, to shameless sycophant, although now he’s starting to distance himself from Trump a bit. The Democratic challenger is Jaime Harrison, a Black attorney and former chair of the state Democratic Party. Some polls show him leading Graham, and the

race is considered a toss-up. GEORGIA: The Republican incumbent is David Purdue, yet another little-known Republican in what is perhaps surprisingly rapidly becoming a purple swing state. The Democratic challenger is Jon Ossoff, who three years ago came out of nowhere to raise $26 million for a special House race, and most consider this race a toss-up.

based on information she received in a classified Senate briefing on COVID-19, and many people consider that illegal insider trading. The format of the election is unusual: all candidates will be on the ballot in November, including Doug Collins, the Republican Trump wanted appointed last year and the Democrats include Rev. Raphael Warnock (the head of MLK’s old church) and Matt Lieberman (Joe’s son). If no one gets over 50 percent (which appears likely at the moment), the top two, regardless of party, will face a run-off on January 5, 2021. It’s hard to predict this one without knowing the matchup but some people say this race is a toss-up with polls of hypothetical matchups showing Doug Collins most likely to beat a Democrat. In sum, there’s a Senate race in which the Democratic challenger has over a 10-point lead, which I’d consider a slam dunk, and three others where the Democratic challenger has a five to 10-point lead, which I’d call very likely indeed. Then there are three more still where the Democratic challenger has a less than a five-point lead, but I’d still call them more likely to win than lose, especially if Trump keeps going down, which I think he will do. Finally, there are three other races that

are considered toss-ups, but I think may be

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

slight favorites by election day if current

and skyrocketing unemployment.

trends continue. And there were some states that Democrats had hoped they could win,

As a result, Trump has seen Joe Biden’s nar-

and may have even been close in the polls at some point, but in which the Republican in-

big one (high single digits or low double digits,

cumbents now have narrow leads: Kentucky, Texas, and even Kansas. Although most pundits and poll aggregators now say the Democrats are likely to have a one or two-seat margin, I’m more optimistic and give them a three or four-seat margin.

row lead in the polls grow into a surprisingly far larger than Hillary Clinton’s ever was), in part because Biden sailed easily and uneventfully through the primary races (after he lost the first three), had a very good Democratic convention, and gave a very good acceptance

speech, taking away the argument Trump had presumably hoped to use about Biden being

BIDEN V. TRUMP

too old and feeble for the job.

Many Democrats, including me, didn’t think at first that Trump would even be a serious can-

Those of us with scabs under our chins (from

didate, much less the Republican nominee, much less win the presidency. He was just “interesting” enough in a large field of primary candidates who were too much alike, and that gave him a slim lead almost wire-to-wire, until, as I predicted in December 2015, that he would indeed be the nominee. But virtually no one I know saw him winning (although some now claim to have predicted it), and we all then thought that he would be a disaster from day one (which he has been), but who would have predicted that he would surround himself with people arguably even worse than he was and is (with nearly all of them certainly unqualified). We thought his already-low approval ratings would drop far and fast, but they didn’t, and in fact now he’s about as high as he’s ever been, and nothing seems to drop them further (despite scandals aplenty), until this year, with the COVID-19 pandemic and the resulting economic crash

our jaws hitting the floor so often) are still amazed at how Trump seemingly doubles down whenever he gets called on a ridiculous, racist, and/or blatantly unconstitutional executive order, seemingly to distract voters from his last gaffe (in most cases less than 24 hours earlier), while simultaneously delivering the required red meat to his base. I repeated throughout last year and earlier this year that I worried that Joe Biden was too fragile a frontrunner, and we needed someone with a bolder and more progressive agenda, like Sanders or Warren, because

Trump was eminently beatable. Well, Trump seems more beatable now than ever, and one side of me misses the chance to get a real progressive in there, who could also have beaten Trump. But now I’ve concluded that Joe Biden is exactly what most Democrats (and most voters) need now – a calm, competent, reassuring uncle who won’t rock the boat too much, and will repair much or most of

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Trump’s damage, and restore our frayed in-

not leave (if he feels the election was rigged,

ternational relations, and with any luck we’ll get a few new progressive laws and policies

and his supporters don’t let him), with Biden adding the people will decide the election,

passed. The real fun may begin after 2024, when President Kamala Harris or someone

and that the Secret Service is quite capable of removing trespassers from the White House.

else takes office.

View this article at Marinbar.org

Trump may yet ultimately do what he planned four years ago when he thought he’d lose, which is to start his own TV network; his pres-

idential campaign was just to build his brand and name recognition. That is, if he stays out of jail, which he may not be able to do, given Manhattan District Attorney Cyrus Vance, who will shortly have Trump’s tax returns, and New York State Attorney General Letitia

Greg Brockbank is a 30-plus-year attorney and civic and political activist, having served for 22 years on the College of Marin Board of Trustees and then on the San Rafael City Council. He is the senior member and immediate past chair of the Marin Democratic Party governing board and has attended 30 state Democratic conventions. For over 20 years, he has provided numerous groups with detailed lists of the contact info for all candidates for Marin’s local offices, and appears as a commentator and election-night co-host on public access television. EMAIL | WEBSITE

James, who is also investigating and, according to some, very likely to indict and try Trump on a variety of matters, some of which

occurred before Trump became president, and maybe even some based on activities occurring while he was president. Many friends fear an October Surprise, but Trump didn’t create one two years ago, when

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he knew the Democrats were very likely to win the House, and what could he possibly do

BRONZE

to make up the amount he’s behind in the

polls? Whatever it may be, the public may well be very likely to see through it. Others fear that Trump will refuse to vacate the office, and/or leave the White House, but despite the fact that Biden tweets don’t have nearly the reach of most of Trump’s, he had a tweet that exceeded by a factor of ten Trump’s most re-tweeted tweet. It was in response to Trump’s suggestion that he might

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